UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


OCT  20  Ij22  ^^^  ^^ 

NBW  YOKk« 


1^1! 


THE  lAW  OF 

MOTION  PICTURES 

INCLUDING  THE  LAW  OF  THE  THEATRE 


TREATING  OF  THE    VARIOUS    RIGHTS  OF  THE    AUTHOR, 
ACTOR,  PROFESSIONAL  SCENARIO  WRITER,  DIRECTOR, 
PRODUCER.   DISTRIBUTOR.  EXHIBITOR  AND  THE 
PUBLIC.  WITH  CHAPl^ERS  ON  UNFAIR  COMPE- 
TITION. AND  COPYRIGHT  PROTECTION  IN 
THE  UNITED  STATES.  GREAT  BRITAIN 
AND  HER  COLONIAL  POSSESSIONS 


BY 
LOUIS  D.  FROHLICH  AND  CHARLES  SCHWARTZ 

MtMBERS  OK  THE  NEW  YORK.  BAR 


NEW  YORK 

BAKER,  VOORHIS  AND  COMPANY 

1918 


0.6 ^Y  Z 


Copyright,  1917,  bt 
LOUIS  D.  FROHLICH 

AND 

CHARLES  SCHWARTZ 


THia  BOOK  IS  AKFECTIONATELV 
DEDICATED  TO 

NATHAN  BURKAN 

TO  WHOM   WE  OWE  OUR  ENTRANCE 

INTO  THE   FIELD    OF  MOTION 

PICTURE  AND  THEATRICAL 

LAW 


PREFACE 

So  rapid  has  been  the  growth  of  the  motion  picture  in- 
dustry that  within  a  (juarter  of  a  century  after  its  birtli, 
it  ha.s  taken  its  place  among  the  five  foremost  business 
enterprises  of  this  country. 

Litigation  between  the  different  parties  associated  with 
the  business  has  been  frequent  and  has  resulted  in  a  large 
body  of  case  law  on  the  questions  peculiar  to  the  industry. 

Notwithstanding  the  growth  of  this  branch  of  the 
amusement  life  of  the  nation  and  of  the  importance  of  the 
law  peculiar  to  it,  no  attempt  has  been  made,  so  far  as  we 
know,  to  collect  the  decisions  and  to  point  out  the  general 
principles  of  law  which  have  been  developed  by  the  courts 
with  reference  thereto. 

To  give  such  a  statement  of  the  motion  picture  law  has 
'been  our  object. 

We  have  collected  every  available  decision  of  the  State 
and  Federal  Courts,  as  well  as  of  the  Courts  of  England 
and  Canada  relating  to  motion  pictures.  We  have  also 
collected  all  the  more  important  decisions  with  reference 
to  tiie  theatre  and  literary  property  in  general,  as  many  of 
the  principles  estal)lished  in  those  branches  of  the  law 
apply  to  motion  pictures. 

V 


VI  PREFACE 

If  this  work  will  assist  the  Bench  and  the  Bar  in  clarify- 
ing the  numerous  legal  questions  constantly  presented  in 
Utigation  of  this  nature,  we  shall  feel  amply  repaid  for  our 
efforts. 

Thanks  are  due  to  William  Leonard  Berk,  Esq.,  for 
assistance  on  the  proofs. 

Louis  D.  Frohlich, 
Charles  Schwartz. 
165  Broadway,  New  York. 
December  1,  1917. 


TABLE  OF  CONTENTS 
CHAPTER  I 

THE   AUTHOR 

Rights  in  his  Literary  Works 

Paok 
Sec.     1.  Where  the   motion  picture  is  based  upon  a  dramatic 

composition 1 

2.  Where  the  motion  picture  is  based  upon  a  novel  or  his- 

torical work 11 

3.  Where  the  motion  picture  is  based  upon  a  short  story, 

sketch,  poem,  lecture,  sermon  or  other  kindred  work .  .      15 

4.  Where  the  motion  picture  is  based  upon  an  original 

scenario,  tliat  is  one  not  based  upon  any  other  work.  .      V.) 

5.  Where  the  motion  picture  is  l)ased  upon  a  news  item .  .  .     23 

6.  Where  the  motion  picture  is  based  upon  a  work  in  the 

public  domain 24 

7.  Where  the  motion  picture  is  produced  in  serial  fonn..  .  .     25 

8.  Where   the  relationship   is  that  of  employer  and   om- 

I)loyc 2() 

9.  Where  the  motion  picture  material  has  been  written  by 

more  than  one  person 35 

10.  Nature  of  the  contract  of  co-authorship 45 

11.  Whore  music  has  been  written  specially  to  accompany 

the  exhibition  of  the  motion  picture 51 

12.  Where  the  motion  picture  producer  has  not  followed  the 

text  of  the  work  upon  which  the  motion  picture  is 
based 53 

13.  Criticism  of  the  work 63 

vii 


VIU  CONTENTS 

CHAPTER  II 

THE   AUTHOR    (CONTINUED) 

Miscellaneous  Questions 

Page 
Sec.  14.  On  the  question  whether  the  contract  existing  between 

the  parties  is  a  personal  one 67 

15.  Where  the  contract  contains  a  negative  covenant 71 

16.  Where  the  work  is  to  be  to  the  satisfaction  of  the  pro- 

ducer       73 

17.  Where  the  contract  provides  for  the  writing  of  a  Hbelous, 

immoral  or  seditious  work 73 

18.  Where  the  Hcense  granted  is  a  sole  and  exclusive  one. ...     73 

19.  Where  the  contract  contains  limitations  as  to  methods  of 

exploitation 74 

20.  Where  the  work  is  to  be  produced  at  a  definite  time. ...     75 

21.  Where  the  payment  to  the  author  is  based  upon  a  per- 

centage of  the  gross  receipts  or  net  profits 77 

22.  Where  the  amount  to  be  paid  to  the  author  is  guaranteed    79 

23.  Wliere  the  payment  to  the  author  is  a  stipulated  amount 

per  performance  or  per  period 80 

24.  Where  the  amount  of  damages  in  the  event  of  a  breach  is 

stipulated 83 

25.  Wliere  the  contract  provides  for  a  forfeiture  upon  failure 

to  pay  the  royalties  due 84 

26.  Where  the  manuscript  is  lost  or  converted  after  submis- 

sion to  the  producer 87 

27.  Where  the  work  is  secured  by  means  of  a  prize  contest. .     88 

28.  On  the  (juestion  whether  an  outright  purchaser  is  re- 

quired to  reproduce  the  work 89 

29.  On  the  question  whether  the  producer  is  entitled  to  a  re- 

fund of  advance  payment 90 

30.  On  the  question  whether  the  contract  may  be  rescinded 

vfho.rv  tlic  author  made  a  poor  bargain  or  where  fraud 

is  involved DO 


CONTENTS  IX 

Pa(jk 
Sec.  31.  On  the  question  whether  the  contract  may  be  rescinded 
wliere  tlie   producer  made   ii  poor  bargain   or   where 

frtiiui  is  involved 'Jl 

32.  On  the  question  whether  a  contract  to  write  will  be 

specifically  enforced 92 

lili.  On  tlio  question  whether  the  licensor  may  maintain  an 

action  against  third  parties 92 

34.  On  the  question  whether  courts  grant  injunctions  pen- 
dente lite  more  readily  in  actions  of  this  nature 92 

CHAPTER  III 

THE    PRODUCER 

The  Actor 

Sec.  35.  In  general 95 

36.  Injunction   for   breach  of-  contract  where  services  are 

special,  unique  and  extraordinary 95 

37.  Injunctions  pendente  Hte 108 

38.  Services  to  be  ".satisfactory" 112 

39.  Length  of  engagement 117 

40.  Two  weeks'  custom  and  other  customs 119 

41.  Contracts  for  work  on  Sunday 125 

42.  Services  "actually  performed" • 131 

43.  Substantial  performance 133 

44.  Anticipatory  breach 135 

45.  E.xposure  to  obscenity,  ridicule,  degradation,  etc 136 

46.  Renewal  of  contract — modification 142 

47.  How  many  causes  of  action  for  breach 145 

48.  Actor's  remedy  for  breach 146 

49.  Profits  as  a  basis  for  damages 149 

50.  Producer's  offer  of  re-employment  after  breach 154 

51.  Grounds  for  discharge 156 

52.  Actor's  breach  of  the  contract — damages 166 

53.  Changing  motion  jjicture 169 


X  CONTENTS 

Page 
Sec.  54.  Contracts  with  infants 173 

55.  Inability  of  producer  when  studio  closed  by  the  authori- 

ties    176 

56.  Questions  of  travel 177 

57.  Booking  agencies 178 

58.  Workmen's  Compensation  Acts 180 

59.  Garnishment 184 

60.  Serial  stories 185 

61 .  Escrow  agents 186 

62.  Where  joint  venture 187 

63.  Royalties  in  addition  to  salary 190 

64.  Law  governing  validity  of  contract 190 

65.  Contract  labor  and  exclusion  laws 191 

66.  Performance  in  unlicensed  theatre 192 

67.  Contracts  for  transportation — damages 193 

68.  Power  of  company's  officer  to  contract — agency 195 

69.  Costumes 197 

70.  Enticement  of  actor 198 

71.  Libel  of  actor 202 

CHAPTER  IV 

THE    PRODUCER    (CONTINUED) 

His  Other  Employes 

Sec.  72.  Scenario  \\Titer » 205 

73.  Director  and  other  employes 209 

CHAPTER  V 

THE   DISTRIBUTOR   AND   THE   EXHIBITOR 

Sec.  74.  Distributor — in  general 214 

75.  Exhibitf)r  -in  general 225 

76.  Adverti.sing  matter,  programs,  bill-posters 228 


CONTENTS  XI 

Paob 

Sec.  77.  What  are  fixtures 232 

78.  Replevin  of  film  and  machine 235 

79.  Theatre  lea.ses 237 

80.  Theatre  a  nuisance 2.51 

81.  Franchise  and  booking  agreements 2.'>6 

82.  lienefit  performances — private  exhibitions 258 

83.  Interstate  commerce 260 

84.  Bankruptcy 261 

85.  Libel 264 

CHAPTER  VI 

THE    PUBLIC 

Right  of  Privacy 

Sec.  86.  In  general 267 

87.  When  liable  under  statute 274 

88.  When  not  liable  under  statute 278 

89.  When  use  of  name  or  picture  is  libelous 282 

90.  Weekly  news  motion  pictures 284 

CHAPTER  VII 

THE    PUBLIC    (continued) 

Theatre  Proprietor's  Duty 

Sec.  91.  Right  to  exclude  patrons 291 

92.  Liability  for  injuries  sustained  by  patrons — In  general.  .  299 

93.  Falling  over  balcony 303 

94.  Seats  and  floors ^^-^ 

95.  Tripping  in  darkened  theatre — aisles — steps — exits 306 

96.  Articles  dropping 311 

97.  Wild  animals 313 

98.  Crowds 318 

« 


XU  CONTENTS 

Page 

Sec.  99.  Hurt  by  performer 319 

100.  Miscellaneous  accidents 322 

101.  Acts  of  strangers 325 

102.  Assault 326 

103.  Who  is  liable 331 

104.  Property  lost  in  theatre 335 

CHAPTER  VIII 

THE    PUBLIC    (continued) 

License 

Sec.  105.  What  is  "Motion  picture"  "Theatrical  performance" 

"Theatre" 337 

106.  Necessity  for  license 345 

107.  Power  to  license  discretionary — Revocation 349 

108.  Extent  of  discretionary  power 351 

109.  Right  to  license  on  condition 358 

CHAPTER  IX 

the  public  (continued) 

Regulation 

Sec.  110.  Buildings— Distances 362 

111.  Standees — Aisles — Closing 365 

1 12.  Operator  and  booth 367 

113.  Firemen — Fire-escapes — Exits 368 

1 14.  Admission  of  children 370 

115.  Hogulation  amounting  to  prohibition 371 

116.  Proliibition — Imniorahty 372 

117.  Wlio  is  liable  for  penalty 379 

118.  Ticket  "Scalping" 381 

119.  C:enHorHhip 383 

120.  Sunday  performance 391 


CONTENTS  Xm 

CHAPTER  X 

UNFAIR   COMPETITION 

Titles — Marks  and  Devices 

"^  "  Paob 

Skc.  121.  Using  same  or  similar  titles 402 

122.  Use  of  title  after  copyright  in  work  expires 4.'i8 

123.  Infringement  of  titles— Titles  held  to  infringe 440 

124.  Infringement  of  title.s— Titles  held  not  to  infringe 445 

125.  Acquiescence  and  abandonment 449 

126.  Relief 4.5;j 

127.  Marks  and  devices 400 

12.S.  Transferability 463 

129.  Parties 467 

130.  Actions  at  law 468 

131.  Trade-mark  in  title  of  cartoon 469 

CHAPTER  XI 

UNFAIR  COMPETITION    (CONTINUED) 

Miscellaneous  Matters 

Sec.  132.  Right  to  use  or  a.ssign  one's  own  name 477 

133.  Limitations  on  use — price  fixing 481 

134.  Restraint  of  trade 487 

CH.VPTER  XH 

COP"iTlIGHT 

In  General 

Sec.  135.  Common-law  rights 491 

136.  What  is  ."Secured  by  ecqn'right 499 

137.  How  copyright  is  secured 500 


XIV  CONTENTS 

Page 

Sec.  138.  Publication 503 

139.  Notice  of  copyright 510 

140.  Licensee's  failure  to  insert  notice 519 

141.  False  notice  of  copyright 520 

142.  Title— Changing  title 521 

143.  Who  may  secure  copyright 524 

144.  Belligerent  aliens 527 

145.  In  what  name  copyright  may  be  taken  out 532 

146.  Subjects  of  copyright — in  general 534 

147.  Immoral  and  seditious  works 535 

148.  Gags,  stage  business,  contrivances,  cartoons,  advertise- 

ments    536 

149.  Burlesques,  parodies,  inferior  copies 541 

150.  Copyrighting  revised  edition  of  work 543 

151.  Works  in  pubhc  domain 544 

152.  Component  parts 544 

153.  Term  of  copyright 546 

154.  Renewal  of  copyright 547 

155.  Assignment  of  copyright 550 

156.  Difference  between  assignment  and  license 557 


CHAPTER  XIII 

COPYEIGHT    (continued) 

Infringement 

Sec.  157.  Tests— What  is  protected 559 

158.  Primary  test 561 

159.  Common  sources 568 

160.  Substantial  similarity  by  coincidence 574 

161.  Who  may  maintain  action — Misjoinder  of  parties — 

Joinder  of  causes  of  action 577 

162.  Where  action  may  Im;  brought 585 

lf)3.  Who  is  liable— Intent 586 


CONTENTS  X\ 

Page 

Sec.  164.  "Wliat  must  be  alleged  and  proved 593 

165.  Bill  of  particulars 599 

CHAPTER  XIV 

COPYBIGHT    (continued) 

Remedies 

Sec.  166.  Actions  in  equity— In  general 602 

167.  Preliminary  injunction 602 

168.  Final  hearing 608 

169.  Injunction  as  to  part 619 

170.  Writ  of  seizure 621 

171.  Accounting 623 

172.  Actions  at  law 626 

173.  Actions  purporting  to  be  brought  under  the  Copyright 

Act 628 

174.  Willful  infringements 634 

175.  Statute  of  limitations 636 

176.  Construction  of  forfeiture  and  penalty  clauses 636 

177.  Appeal 638 

CHAPTER  XV 

COPYRIGHT    (continued) 

Miscellaneous  Matters 

Sec.  178.  Return  of  copies  depo.sited 630 

179.  Pr()liil)ition  of  importation  of  piratical  copies 640 

180.  Ad  interim  protection 641 

181.  Bankruptcy— Title  in  trustee 643 

182.  Selling  secondhand  copies 646 

183.  Taxal)ility 648 

184.  Music  in  theatres 649 


XVI  CONTENTS 

Page 
Sec.  185.  Co-authorship 653 

186.  Employer  and  employe 653 

187.  Restraint  of  trade — Price  fixing — Monopoly 653 

CHAPTER  XVI 

COPYRIGHT    (continued) 

British,  Colonial  and  International  Copyright 

Sec.  188.  Copyright  in  United  Kingdom  and  Protectorates 654 

189.  Copyright  in  Newfoundland 658 

190.  Copyright  in  Commonwealth  of  Australia 658 

191.  Copyright  in  Dominion  of  New  Zealand 659 

192.  Copyright  in  Union  of  South  Africa 660 

193.  Copyright  in  Dominion  of  Canada 660 

194.  International  Copyright 672 

APPENDIX 

United  States  Copyright  Act  of  1909  as  amended  by  the  Acts  of 

1912,  1913  and  1914 677 

Tahulatod  List  of  Presidential  Proclamations  conferring  copyright 

l)r()tccti()n  upon  foreign  citizens  or  subjects 710 

Rules  of  the  Supreme  C'ourt  of  the  United  States  for  practice  and 
procedure  under  section  twenty-five  of  the  United  States 

Copyright  Act  of  1909 714; 

Presidential  Proclamation  of  April  9th,  1910 719 

C()i)yright  Convention  botwoen  the  United  States  and  Hungary.  .  722 
Copyright   Convention   between   the   United   States   and   other 

American  Republics 725 

Order  in  Oiuncil  of  dreat  Britain  of  February  3,  1915 732 

Presidential  Proclamation  of  January  I,  1915 735 

Staf<-in('nt  of  Register  of  C^opyrights  with  respect  to  copyright  of 

l:il)cls  and  jirint.s 739 


CONTENTS  XVU 

Page 
Rules  and  Regulations  for  the  registration  of  claims  to  copyright, 

as  revised  and  issued  in  November,  1917 740 

British  Copyright  Act  of  l'.)ll 762 

Previous  British  Copyright  Acts  not  repealed  by  the  British  Copy- 
right Act  of  191 1 801 

Canadian  Copyright  Act 812 

Rules  of  the  Canadian   Department  of  Agriculture  under  the 

Copyright  Act 833 

Convention  creating  the  International  Copyright  Union,  known 
a«  the  Berne  Convention  of  1908  and  commonly  referred  to 

as  the  Berlin  Convention  (text  in  English) 836 

(text  in  Frencli) 858 


TABLE  OF  CASES  CITED 


Page 

Aaron  v.  Ward 291 

Ahorii  ('.  Janis lOfi,  174,  175 

Ahramovitz  v.  Tenzer. .  .360,  312 
Actiongescllscliaft  v.  Arnberg  450 

Adams  v.  Burke 481 

Adams  r.  (Irossmith 88 

Adams  r.  Fellers 224,  236 

Adams  r.  Fitzpatrick 143 

Adams  /•.  Folger 460,  585 

Adler,  Matter  of  Samuel.  ...    183 

Adier  c.  Miles 241 

Agawam  Co.  v.  Jordan 630 

A.  G.  V.  Shoreditch  Corpora- 
tion   362 

A.  G.  r.  Vitagraph  Co.,  Ltd. .  260 

Ahlstrand  r.  Bi.shop 315 

Akinr.  Meeker 592 

Albera  v.  Sciaretti 126,  127 

Albert  r.    Interstate   Amuse- 
ment Co...  178,  191,  196,  256, 
258,  261 

Albrifiht  ('.Teas 553,  632 

Aldcn  r.  .\rnsky-\Vilson 445 

Alexander  r.  Potts 162 

\lexander  r.  Manners  Sutton    88 

Allen  V.  Flood 202 

Allen  r.  Walker 452,  465 

Allen  Hillposting  Co.  v.  King  229 
.\lmind  v.  Sea  Beach  Ry.  Co. 

281,  288 


Page 

American  Acad,  of  Music  r. 

Birt 124 

American  Clay  Mfg.  Co.  v. 

American  Clay  Mfg.  Co. 

441,  46;i 
American     Hungarian    Pub. 

Co.  v.  Miles  Bros 151 

American  Law  Book  Co.  v. 

Chamberlayne 27,  54,  55 

.Vincrican    League   c.    Chase 

96 
American     Malting    Co.     v. 

Kcitel 54,  603 

American    Music    Stores    r. 

Kussell 113 

American  Pre.ss  Ass'n  v.  Daily 

Story  Piib.  Co 520 

American    Tobacco    Co.    v. 

Werckmeister 505,  623 

American   Trotting    Reg.    r. 

Gocher 603 

American    Waltham    Watch 

r.  U.S.  Watch  Co 163 

Amoskeag  Mfg.  Co.  v.  Spear 

452,  459,  460 

Anderson  r.  Jjong 19S 

Andre  r.  Mertens 307,  308 

Andrews  r.  Chandler 233 

Andrews  v.  Kilgour 315 

Andrus  v.  Berkshire  Co 610 

xix 


XX 


TABLE   OF   CASES 


Page 

Angers  v.  Leprohon 55 

Angle  V.  Chicago  &  St.  Paul 

Ry.  Co 202 

Anti-Vice     Motion    Picture 

Co.,  Inc.,  V.  BeU 373 

Appleton  V.  Welch 336 

Appollinaris  v.  Scherer 468 

Apthorpe  v.  Neville 73 

Archbold  v.  Sweet 55,  65 

Archer  v.  Willingrice  . .  .  343,  348 

Arden  v.  Lubin 84 

Arena  A.  C.  v.  McPartland. .  103 
Arkansas    Smelting    Co.    v. 

Belden 645 

Armstrong  v.  Majestic  Mo- 
tion Picture  Co 196 

Armstrong  v.  Savannah  Soap 

Works 468 

Armstrong  v.  Stair 329 

Arnold  v.  State 321 

Aronson      v.      Fleckenstein 
44,  406.  417,  429,  438,  443, 

492,  497,  531,  570,  581 

Aronson  v.  Orlov 628 

Ashley  /•.  Dixon 202 

AspinwuU  Mfg.  Co.  v.  Gill.  .     38 
Associated  Press  v.  Interna- 
tional News  Sers'ice 23 

Astor  V.  W.  82  St.  Realty  Co.  437 
Atcliison-Kly  r.  Thomas.  .  .  .  189 
Atkin.Hon  v.  Dohcrty.  .  .  .2iY.),  272 
Atlantic  Milling  Co.  v.  Rol)in- 

son 466 

Atla.s  Mfg.  Co.  V.  Street  & 
Smith.   404,418.410,424, 

134,  439,  447,  522,  534 


Page 

At\\nll  V.  Ferrett 594,  596 

Auckland  &  Brunetti  v.  Col- 

Uns 179 

Aughtrey  v.  Wiles 322,  323 

Aunt  Gemima  Mills  Co.  v. 

Rignay  Co 458 

Authors  &  Newspapers  Ass'n 

I'.  O'Gorman  Co 486 

Avery  v.  Langford 102 

Babicz  v.  Riverview  Sharp- 
shooters    331 

Bachman  v.  Belasco 572 

Baghn  v.  Cusenier  Co 450 

Bainbridge  v.  City  of  Min- 
neapolis  355,  357,  379 

Baker  v.  City  of  Cincinnati . .  359 

Baker  v.  Selden 560 

Baker  z?.  Taylor 514 

Baldwin  ?'.  Baird 632 

Bald\vin  v.  Burrows 47 

Ball    V.    Broadway    Bazaar 

417,  433 

Bancroft  v.  Scribner 645 

Banker  v.  Caldwell 492 

Banks  Law  Pub.  Co.  v.  Law- 
yers Co-operative 552 

Banks  v.  Manchester. . .  .511,  593 
Barber  i;.Penley.  .  .252,  253,  344 

Barclay  r.  Barclay 37 

Barnes  v.  Miner 537 

Barnes  v.  Stern  Bros 336 

Barnett  v.  Q.  &  C.  Co.  .6,  74,  85 
BarnswoU  v.  National  Amuse- 
ment ('o 297 

Baron  v.  Placidc 13'.> 


TABLE    OP^    CASES 


XXI 


Pa(;k 
Barrett     r.     Lake     Ontario 

Beach  Imp.  Co 302,  'AZi 

liartlette  r.  Crittenden 50G 

Bartsch  r.  Hcrndon 51,  09 

Bass   Furnace  Co.   v.  Glass- 
cock  1G2,  1(53 

liassett  7".  Frencli 147 

Batchelder  r.  Standard  Plun- 

Rcr  El.  Co lG.i 

Batty  r.  Melillo 178 

liauer  /'.  O'Coiinel 4S2 

Bauineister  r.  Markhani ....  137 

Baxter  r.  Billings 48,  49 

Baylies  /•.  Bulloch 592 

Baylies  /•.  Curry 298 

Beck  r.  Carter 302 

Bccknian  v.  CJarrott 156 

Beer  r.  Canary 229 

lieiford  ;■.  Scrihner.  .19,  532, 

590,  598,  010 

Jielknapp  v.  Ball 03 

Bell,  ex  parte 344 

liell  r.  Locke 440 

Bell  r.  Mahn 340 

Bellamy  v.  Wells..  .252,  254,  344 

Bellis  V.  Beale 344,  349 

Bcllis  r.  Burghall 343 

Beltinck  r.  Tacoma  Theatre 

Co 230 

Bender  /'.  Kins 232,  234 

Benn  v.  Ix;  Clerq 411 

Bennett  r.  Carr 037 

Benson  /-.  McMahon 383 

Bentley  r.  Tii)l)als 544,  010 

Benton  r.  Pratt 202 

Benton  ;•.  Van  Dvke 003 


Pagk 

Benyaker  r.  Scherz 79,  190 

Bergen;  r.  Parker 129,  190 

iiernstein  r.  Aleech 79,  149 

Besozzi  V.  Harris 313 

Betterton's  Case 252 

Bettinir.  Gye 157,  166 

Bien  r.  Abbey 228 

Bierce  v.  Stocking 6^i0 

Billiken  Co.  v.  Baker  &  B.  Co.  455 
Bilordeaux   r.   Bencke   Lith. 

Co 120 

Binns  /•.  \'itagraph  Co..  .274, 

280,  286,  2SS,  290 

liinns  ('.  Woodruff 590,  619 

liiograph  Co.  r.  International 

Film  Traders..  .  .224,  225,  236 

Bird  i\  Everhard 336 

Bird  r.  Thanhau.scr 591 

Bird  V.  Welsh 592 

Bishop  r.  Viviana  &  Co. ..20,  537 
Black  V.  Allen  524,  550,  596,  608 
Black  V.  Ehrich..  .  .403,  405,  438 
Black  t'.  Imperial  Book  Co. 

557,  661,  671 
Blackledge  r.  Weir.  . .  .38,  42,  43 

Blackwell  v.  Dibrell 4.50 

Blakely  v.  Sousa.  .46,48,67, 

479,  480 
Blakely  v.  Wliite  SUir  Line. .  332 

Blank  i\  Mfg.  Co (M) 

Bleistein   r.    Donald.son.  .27, 

32,  r)0().  539,  541,  574 

Bli.'^s  /'.  Xegus 630 

Blitz  v.  Toovey 139 

Block    r.    City    of    Chicago 

337,  356,  372 


XXll 


TABLE    OF    CASES 


Fage 

Bloom  V.  Nixon 19,  537 

Bloomer  r.  McQuewan 481 

Blovmt  V.  Societe Ill 

Blumei'.  Spear 511,  516,  522 

Bobbs-Merrill  v.  Equitable.  .   573 
Bobbs-Merrill  Co.  v.  Snellen- 

berg 486 

Bobbs-Merrill    r.    Strauss 

486,  496,  560 
Bobbs-Merrill  Co.  v.  Univer- 
sal Film  Mfg.  Co 78 

Boisseau   v.   Scola  Am.   Co. 

337,  344 

Bole  ;^  Pittsburgh  A.  C 318 

BoUes  V.  Outing  Co 513,  516 

Bong  V.  Campbell  Art  Co. .  .   527 

Boosey  v.  Empire 607 

Booth  r.  Jarrett 480 

Booth  V.  Lloyd 63 

Booth  r.  Richards 67 

Borman  v.  City  of  Alilwaukee  317 
Borthwick   v.   The   Evening 

Post 404,  448 

Bosselman      r.      Richardson 

594,  595,  598 

Bossner,  Inre 397,  398 

Bo.ston  Glass  Mfg.  v.  Binney  202 
lioston      Traveler      Co.     v. 

Purdy 637 

liosweli  r.  Barnum 292,  2<)4 

iioucicuult  V.  ( 'hatterton.  .  .  .   568 

lioucicault  V.  Delafield 526 

Boucirault  V.  Fox.  .  .29,  492,  506 
HoucicauU  r.  Hart.  .492,497, 

.-)0(;,  511.  .568,  593,  594 
Bf.iicicaiih  r.  Wood 492,  •>96 


Page 
Bourlier  Bros.  v.  Macauley.  .  200 
Bowden      v.      Amalgamated 

Pictorials 274,  281 

Boyd  V.  Dagenais 272 

Boyl    V.     Midland     Lyceum 

Bureau 117 

Bracken  v.  Rosenthal 539 

Bradbury,  Agnew  v.  Day.  . . .   538 

Bradbury  v.  Beeton 448 

Bradbury  v.  Dickens 467 

Bradner  v.  Mullen 336 

Brady  v.  Daly 563,  568,  638 

Brady  V.  Reliance 12,  14,  552 

Branch  v.  Klatt 306,  308 

Brand  v.  Godwin 113,  159 

Brandreth  v.  Lance 266 

Brandt  v.  Goodwin 157,  159 

Brearley  v.  Morley 341,  342 

Brennan  v.  Fox  Film  Corp. 

206,  210 

Brewer  v.  Wynne 357,  372 

Bridgeford  v.  Meagher 114 

Briscoe  ?j.  Litt 120,  140 

British-Ajnerican        Tobacco 
Co.    I'.    13nt.    Am.    C.    S. 

Co 424,  463 

Broadhurst  v.  Nichols.  .405, 

410,  445 
Broder  v.  Zeno  Mauvais  Co. 

536,  616 

Broemcl  v.  Meyer 449 

Brooks  V.  Taylor 314 

P/rown  ?'.  Baldwin  tt  (Sleason 

141,  163 

Ikown  V.  liatcliellor 320,  332 

Brown  ;'.  Nugent 349 


TABLK    OK   CASES 


XXlll 


Pack 
lirowii  r.  Rotsoff  Mfg.  Co.  .  .    Ill 

Brown  r.  S<j.  Kennel)ec 30G 

Brown  v.  Stublxs 3o0 

Brown  v.  United  States 528 

Brown  r.  Weir 194 

BrowninR  r.  ^'an  Rensselaer    65 

Bruce  r.  McManus 3S0 

Bruce  v.  Reed 209 

Brj'ant  r.  Logan 249 

Biu'lianan  v.  Curry 530 

liu(Mi/lo  r.  Newport 292 

Buffalo  Br.  r.  Breitinger.  . .  .  387 
Bullen  r.  The  Swan  Electric    88 

Bullcnr.  Ward 391 

Bullinger  r.  Mackey 597 

Bunnell  v.  Stern 33G 

Bureau  of  National  Litera- 
ture r.  Sells 648 

Burnoll  v.  Chown 571 

Burnett  v.  Snyder. 47 

Burns  v.  Burns 452 

Burns  r.  Herman 324 

Burrow  r.  Marceau 466,  480 

Burrow-Cliles  Lithog.  Co.  v. 
Sarony . . . 490,    513,    516,    596 

Burton  r.  Schcj)f 292 

Burton  ('.  Stratton 466 

Bustanohy  r.  Revardel 166 

Butcher  r.  Hyde 30S 

Buttcrick  Publ.  Co.  r.  Typo- 

grai^hical  Union 2S2 

liuttinan  r.  Dennett 336 

Buxton  r.  James 662 

Byrne  r.  Statist  Co 2(5,  2S 

Bytovetzski    v.    Edward    L. 
Wilson  Co 279 


Calcraft  v.  West .'J44 

Caldwell  v.  Cline 99 

California   Academy   v.   San 

Francisco 249 

California  Fig  Syrup  C'o.  r. 

Imp.  Co 4f).S 

Caliga   r.   Interocean    News- 

l)aixT  Co..  .496,  523,  598,  637 
Callaghan    v.    Myers... 514, 

532,  5.50,  59S,  614,  625,  626 
Camp    r.    Baldwiu-Mcllville 

Co 121 

Camp  V.  Wood 302,  3(U 

Campbell  v.  Honakers 2(53 

Campbell  r.  Portland  Sugar 

Co 302 

Campbell  v.  Spottiswood ....     63 
Canada  Publ.  Co.  r.  Beatty  440 

Canary  r.  Rus.sell 99,  101 

Candilis  «k  Son  v.  Harold  \'ic- 

tor  &  Co 530 

Canterbury  &  Paragon,  Ltd., 

v.  Lloyd 107 

Carlisle  v.  United  States.  ...   531 
Carlton  Illustrators  v.  Cole- 

maa 56,  591 

CariKMiter  Steel  Co.  v.  Nor- 

cross 162 

Carr  r.  Hood 64 

Carte  r.  Duff 5.37 

(^arte  r.  Evans.  .27,  32,  523,  550 
Carter  r.  Bailey.  .37,  41,  47, 

■193,  494,  504,  5S6 

Carter  r.  Ferguson 98,  100 

CartwTight  v.  Wharton 560 

Caswell  /•.  Hazard 410,  423 


XXIV 


TABLE    OF   CASES 


Page 
Celluloid  Mfg.  Co.  v.  Cellonite  466 

Central  Brass  v.  Stuber 42 

Central   City  Sav.   Bank  v. 

Walker 47 

Central  Lith.  v.  Moore 228 

Central  Trust  Co.  v.  United 

States,  etc 617 

Cescinsky  v.  Routledge 45 

Chamberlayne   r.   Am.   Law 

Book  Co 27 

Chancellor  Oxford  Univ.   v. 

Wilmore   Andrews 442 

Chantrey,   Chantrey   &   Co. 

V.  Dey 32 

Chaplin  v.  Essanay 171 

Chapman  v.  Ferry 636 

Chapman  v.  Waterman 477 

Chappell  V.  Fields. .  .  20,  93, 

527,  536,  562,  603 

Chappell  V.  Harrison 124 

(yhappell  V.  Purday 661 

Charley  r.  Potthoff.  .79,  134, 

160,  247 
Chatauqua   School    /•.    Nat'l 

School 59S 

Chatterton  r.  Cave 561 

Cherry  r.  Des  IVIoines  Leader  203 
ChicuKo'Mus.  Co.  r.  liutlor.  .    593 

Chils  V.  (Jrouland 626 

Christy  v.  Murphy 480 

Church  r.  Ililliard.  .341,  392,  649 
Church  tt  Dwight  r.  liuss.  .  .  461 
City    of    Boston    )'.    SclialTcr 

347,  359 
City  of  Buffalo  v.  Chadeaync  358 
Citvof  liuffalo  r.  Hill 355 


Page 

City  of  Chicago  v.  Powers. .  382 
City  of  Chicago  v.  Shaynin 

365,  372 
City  of  Chicago  v.  Stratton . .  365 
City   of   Chicago   v.   Weber 

251,  344,  368 
City   of   Clinton   v.   Wilton 

396,  398 
City    of    Duluth    v.    Marsh 

352,  359,  365 
City  of  Hartford  v.  Parsons .  .   368 
City  of  Indianapolis  v.  Daw- 
son  327,  328 

City  of  Indianapolis  v.  Miller 

251,  344,  367 
City  of    Mobile  v.  Kiernan 

260,  347,  361 
City  of  New  Orleans  v.  Hop 

Lee 369 

City   of   New   York   v.   Al- 

hambra 396 

City  of  New  York  v.  Williams  399 
City  of  St.  Louis  v.  Nash ....  364 
City  of  Topeka  v.  Crawford . .  398 

Clark  V.  Bishop 339,  340 

Clark  V.  Freeman 270 

Clark  Paper  &  Mfg.  Co.  v. 

Stonacker 96 

Clark  V.  North  American  Co.  283 

Clark?;.  West "77 

Clarke  r.  Searle 349 

Clary-S(iuire  v.  Press  Publ. 

Co 283 

Clay  ?'.  People 210 

Clemens  v.  Bclford.  .57,  60, 

62,  506,  533 


TABLE    OF   CASES 


XXV 


Vxr.K 

Clemens  r.  Estes 4SG 

Clemens  r.  Press  Pub.  Co. .  5.3,  6.3 

Clifford  r.  Brandon ;«0 

ClilTord's    Olynipia     Co.     r. 

Waters 121 

Clinical  Obstetrics,  In  re.  .  .   .5.57 
Clinton    Metallic    Paint    v. 

N.V.  Metallic  Paint..  421,  4.55 

Cluni  /".  Brewer .3S,  42 

Cluney  r.  Iah}  Wai 2.>t 

Clyne  r.  Helmes 'Mi 

Cobb  r.  Knapp 197 

Cocks  /'.  Purday 6Go 

Coffeen  v.  Brunton 461 

Coghlan  v.  Stetson 133 

Cohen  v.  Mutual  Life.  .  .528,  5.30 
Cole  r.  Rome  Sav.  Bank .  .  320, 333 

Coleman  r.  Wathen 497 

Coles  i\  Sims 102 

Colgate  V.  Wliite 27S,  607 

Colles  r.  Manp;ham 179 

Collier  r.  Imp.  Films  Co.. 435,  522 

Collier  v.  Jones 442 

Colliery     Engineer     Co.     v. 

United    Corresp.    Schools 

Co 27,  32,  .34,  20S 

Collins     T.     Public     Ledger 

Co 61 

CoUister    v.    Ilayman.  .291, 

293,  294 
Columbia  Mill  Co.  r.  Alcorn  410 
C()luml)ian   Lyceum   Binvau 

('.  Sherman 134 

Colyer  r.  Fox  Publ.  Co.  .281, 

284,  287 
Comerina  r.  Comerma 6.33 


Page 
Commercial  Advertising 

A.ss'n  r.  Hoques 446 

Commonwealth  r,  Alexander 

259,  260,  398 
Commonwealth     r.     Cincin- 
nati     255 

Commonwealth  v.   Donnelly 

340,  .342 
( 'on mion wealth  v.  George.  .  .  299 
Commonwealth  v.  Keoler.  .  .  .345 
Commonwealth  i\  Kneeland  210 
Commonwealth   r.   McGann 

345,  346,  349 
Commonwealth  r.  Powell.  .  .  329 

Commonwealtli  r.  Ray 383 

ComnKjnwealth      v.      Spiers 

338,  342 
Commonwealth  r.  Twitchell  .346 
ComuKjnwealtli  v.  Wcidner.  .  .392 
Com.stock  V.  Lopokowa.  .93, 

96,  HI 
Coney    Island    v.    M'Int>Te- 

Paxton  Co 245 

Connor    r.    The    Princess 

Theatre 316 

Ccmrad  v.  Clauve 321,  3.32 

C\)nreid  Metrop.  Opera  Co. 

r.  Brin 83,  167 

Cooper  r.  Stone 64,  65 

Cooper  V.  Stephens 554 

Coojx*r  r.  Whittingham .56 

Corbett  r.  Purdy..403,  42*),  .522 

Corelli  ;•.  (Jray .576 

Corelli  r.  Wall 270,  277 

Corliss  i\  Walker 272,  27S 

Corsi  r.  Maretzek 157,  1«)7 


XXVI 


TABLE   OF   CASES 


Page 

Cort  r.  Lazzard   99,  100 

Cortesy  v.  Territory' 391 

Cosby  V.  Robinson 355 

Cotton  V.  Sounes 123 

Cousineau  v.  Muskegon. .  . .  325 

Cox  r.  Coulson 320 

Cox  V.  Cox 33,  55 

Cox  r.  Sports  Publishing  Co.  448 

Cramer  v.  Klein 255 

Crane  v.  Kansas  City  Base- 
ball    322 

Craxvford  v.  Mail  and  Express 

Pub.  Co 104,  112,  208 

Cream  Co.  v.  Keller 477 

Cremore  r.  Hul)er.  .298,  325,  327 

Crepps  v..  Burden 391 

Croasdale  v.  Tantum 64 

Cronin  v.  Bloewecke 255 

Crookes  v.  Petter 56,  212 

Crossman  v.  Gr'ggs 465 

Crotch  V.  Arnold.  ..404,  449,  522 

Crow  V.  State 397 

Crowe  V.  Aiken. . .  .492,  584,  586 
Crowley    v.    Rochester    Fire 

Works 301 

Crown  Feature  l-'ilm  r.  Betts 

594,  622 
Crown  Feature  Co.  v.  Levy 

595,  596 

Crutcher  v.  liig  Four 269 

Cuervo  r.  Henkell 450 

Cuml)erland  /•.  Copeland.  ..  .    552 

Curran  r.  Birdsall 38 

Currier     r.     Boston     Music 

Hall 325 

("luricr  /'.  Tlonderson 312 


Page 
Curtis  &  Dodd  v.  Struthers.  .  144 
Cutting  V.  Miner 149 

D'Altomonte  v.  N.  Y.  Herald  274 
Da   Prato    Statuary    Co.    v. 
Giuliani  Statuary  Co.  .541,  545 

Dailey  v.  Super.  Court 266 

Dale  Rejaiolds  v.  Trade  Pa- 
pers Publ.  Co 448 

Dallas  V.  Murry 121 

Dalton  V.  Hooper 309 

Daly  V.  Brady 567,  568 

Daly  V.  Palmer.  . 20, 538, 562, 

567,  569,  587 

Daly  V.  Smith 96 

Daly  V.  Stetson 80 

Daly  V.  Wabash 61 

Daly  p.  Walrath 496,  507 

Daly  V.  Webster.  . .  .20,  524,  540 
Dam  ?'.  Kirk  La  Shelle..l3, 
17,  22,  546,  556,  558,  566, 

614,  626,  627 

Dana  v.  Fielder 125 

Dann,  In  re 644 

Danville  Press  v.  Harrison. .   210 
Daversa  v.  Davidson's  Sons 

Co 114 

Davies  v.  Bowes.  .23,  24,  598,  ()16 

Davis  V.  Dodge 140,  147 

Davis  V.  Epoch  Producing  Co. 

224,  228 

Davis  r.  Foreman 100 

Davys  v.  Douglas 364 

Day  r.  Klaw 134,  178 

Day  V.  Luna  Park 251,  264 

Day  ;;.  Siniijson 339,  344 


TABLE    OF   f'ASER 


XXVll 


Pace 

Day  r.  Webster 455,  463 

Day  r.  Wood  worth 469 

I)e  Hegnis  ;•.  Artnistead.  .  .  .    192 

DeHekkcr  r.  Stokes 57.  212 

DeCarltuii  r.  (ihiMT..  .  .120,  125 
De  Francesco  r.  Barinuii..l()7,  175 
De  Gellcrt  v.  Poole.    121 ,  \VA,  1(11 

De  (!ray  v.  Murray 316 

De  Jons  r.  Hehrinan 202 

De.JoiiK  r.  Hnicker 541,  593 

De  Koveii  r.  Lake  Shore  & 

M.  Co 110 

De  Loniz  r.  McDowell.  .155,  150 

DePol  /'.  Sohlke 98 

De  Sando    r.   X.  Y.  Herald 

Co 283 

De  \'eliii  r.  Swanson 311 

De  N'ere  r.  (Sihnore 122 

De    Witt    r.    l-:iinira    Nobles 

MfK.  Co 38,39,43,46 

De  Zeidmer  r.  Lamm 157 

Dean  /•.  lunerson 479 

Dcariiii^M-.  Pearson.  148,  155,  156 

Decatur  r.  Porter 325 

Decker  r.  Ktchison 513,  611 

Delmour  r.  Forsythe 336 

Delaney  v.  Hoot 40 

Dennison  r.  Aslidown 28 

Dennison  Mig.  Co.  r.  Thomas 

Mfg.  Co 461 

Denny  r.  Wright  it  Cobb .  ...    181 

Densmore  v.  l^vergreen 365 

Denver  r.  Hallett 249 

Deubert    v.    City    of    New 

York 599 

Development  Co.  v.  King  140,  15() 


Pa(;k 

Devlin  v.  Devlin 477 

Deyo    r.    Kingston    Consol. 

R.  R.  Co .301 

Diamond  r.  Mendelsohn. ...  114 
Diamond  Match  Co.  v.  Roe- 

ber 102 

Diixlin  r.  Swan 202 

Dick  V.  Yates 4a3,  404,  522 

Dickey  v.  Linscott 157 

Dickey    v.    Mctnj    Pictures 

Corp 421,  444,  457 

Dickey  v.  Mutual  Film  Corp. 

411,   418,   420,   422,   424, 

444,  456 

Dickiii.son  r.  Callahan 48 

Dick.son  v.  Waldron 301,  326 

Dielman  v.  White 27,  596 

Dictze  /'.  Riverview  Park.  .  .  'S^i2 

Dillon  I'.  Pearson 448 

Dis  Debar  v.  Hoeffle 136 

Distington  Hematite  r.  Pos- 

sehl 528,  530 

Dixey  v.  A.  H.  Woods  Prod. 

Co 131 

Di.xon  v.  Corinne 623 

Dixon  Crucible  Co.  i\  Gug- 
genheim   479 

D'Ole  V.   Kansas  City  Star 

505,  609 
Doan  ('.  American  Hook  Co. 

486,  647,  64S 

Dockerell  t\  Dougall 270 

Dock.'^tader  v.  Reed 108,  lOi) 

Dodil  /•.  Smith 486 

Doherty  r.  Allman 100 

Donaldson  c.  Hecket 495 


XX  vm 


TABLE    OF   CASES 


Page 

Donellan,  In  re 398 

Donnell}'^  v.  Ivers 523 

Douglas  V.  Merchants'   Ins. 

Co 143 

Douglas  V.  Stokes 272 

Dow  V.  Henderson 334 

Dovvling  V.  Livingstone 63 

Drake  P.  Hall 42 

Drayton  v.  Reid 162 

Dressier  v.  Keystone  Film  Co. 

190,  221 

Drew  V.  Peer 328 

Dreyfus   v.    City    of    Mont- 
gomery  365,  372 

Drummond  v.  Altemus. .  .58,  212 
Drummond  v.  Atty  Gen'l .  .  .   140 
Du  Pont  Powder  Co.  v.  Mas- 
land  213 

Du  Puy  V.  Post  Telegram. . .   540 

Du  Tremble  v.  Poulin 316 

Duck  V.  Bates 343 

Duckr.  Mayer 593 

Dudley  v.  Abraham 311 

Duff  I'.  Russell 99,  136 

Dugan  V.  Anderson 147 

Duff  V.  Russell 162 

Dunham  v.  The  Indianapolis 

R.  R.  Co 39,  43 

Duniway   Publ.   Co.   v.  The 
Northwest      Printing      & 

Publ.  Co 446 

Duiilop  V.  United  States.  .  . .   535 
Dunn  r.  Agricultural  Soc. ..   332 

Dunning  r.  Jacobs 304 

Dunton  r.  Derby  De.sk  Co...    144 
Dutton  r.  ('iip|)l(!H 457,  475 


P.\GE 

Dwyer  v.  Hills  Bros 311 

Dyckman  v.  Valiente 40 

E.  C.  T.  Club  V.  State  Racing 

Com 355 

Eaton  V.  Lake 30 

Economopoulos  v.  Bingham 

338,  339,  348,  392 
Eddy   V.    American   Amuse- 
ment Co 145,  195 

Edelsteini'.Bell.. .  .357,  376,  379 
Edelstein  v.  Edelstein. .  .461,  469 

Eden  v.  People 396 

Eden  Musee  Co.  v.  Bingham 

373,  393,  400 
Edison  v.  Am.  Mutoscope  Co.  490 
Edison   v.   Edison   Polyform 

Co 61,269,273 

Edison  v.  Lubin 338 

Edison    Storage    Battery,  v. 

Edison 460 

Edling  V.  Kansas  City  Base- 
ball    322 

Edwards  v.  Cissy  Fitzgerald    97 

Edwards  v.  Cotton 558 

Edward  v.  McCIellan .  .  337, 

338,  393 
Edwards  v.  N.  Y.  &  H.  R.  R. 

Co 302,  304,  319,  333 

Egan  V.  San  Francisco 249 

Egbert  r.  Sun  Co 165 

lOichel  k  Colligan  v.  Woods. .   573 

luseman  v.  Schiffor 465 

Eisfeldt  V.  Campbell 566 

Elen  V.  London  Music  Hall 

124,  204 


TABLL    OF   CASES 


XXIX 


Pack 
Elgin  Nat.  Watch  ("o.  r.  Ill- 
inois VVtitch  Co 455,  463 

Kliot  V.  Jones 275 

lllkin  &  Co.  V.  Francis,  Day 

it  Iluntor 438 

Ellis  r.  Marshall 539 

Ellis V.  No. AmericanTheatres  361 

Ellis  c.  Ogden 539 

I'^llis  /'.  Thompson 79 

Ellslcr  r.  Hrooks 150,  153 

Emerson  v.  Davies 502,  570 

Emerson  v.  Nash 283 

Empire  City  Am.  Co.  v.  Wil- 
ton  538,  580,  593 

Encyclopedia    Britannica    v. 
American  Newspaper  Ass'n  608 

Engcl  V.  Shubert 143,  190 

Ejjstein  r.  Cordon 327,  335 

l">nst  r.  (Irand  Rapids  Engr. 

Co 162 

Ervin  v.  Woodruff 317 

Estes  r.  Leslie 439,  442 

Estesr.  Williams 403,  4;59 

Estes   V.    Worthington.  .439, 

442,  591 

Evans  c.  Morris 665 

I'^vcrson  c.  Powers 145,  148 

lCve.s.s()n  ('.  Zi(>gfeld 148 

Ewen's  Colonial  Stamp  Mar- 
ket, Ltd.,  V.  Federal  Stamp 

Co 445 

Ewing  r.  Chase 309 

]']wing  /'.  Oshaldiston 192 

I'Acolsior  V.  Pacific 582 

Exchange  Telegraph   Co.   r. 
Howard 23 


Page 

Pagan  r.  Aborn 122 

Fairbank  Co.  c.  Windsor.  .  .  421 

Fairbanks  v.  Luckel 4.52 

Fairbanks  v.  Montreal  St.  Ry. 

Co 325 

Fairfax  r.  Hunter 528 

Fake  v.  Addicks 316 

Falk  r.  Donaldson 564 

Falk  V.  Cast.  .505,  517,  623,  637 
I'arlcy  v.  Evening  Chronicle 

Puijl.  Co 283 

Farmer  v.  Calvert 594 

Farmer  r.  Elstner 564,  620 

Farmers'  Handy  Wagon  Co. 

V.  Beaver 460,  584 

Farndalc  v.  Bainbridgc 348 

Fay  r.  Bignell 342,  649 

Fay  V.  Harrington 264,  265 

Fechter  r.  Montgomery. .  105,  207 

Feinstein  r.  Jacobson 102 

Fennar  r.  Atlantic  Am.  Co. .  .  324 
Penning  Film  Service  v.  Wol- 
verhampton  225,  587 

Fenstcrmaker      r.      Tribune 

Pub.  Co 270,  284 

Fenton  v.  Clark 156 

Ferguson,  Ex  parte 396 

Ferris  v.  Frohman 509,  618 

Fichtel  r.  Barthel -608 

Fichtenberg  r.  .\tlanta 392 

Filburn   r.  Peoples  P.   &  A. 

Co 317 

Finney's   Orchestra    i\    Fin- 
ney's Famous  Orchestra .  .  465 
Fire  Department  r.  Hill.  .369, 

380,  .587 


XXX 


TABLE    OF   CASES 


Page 
Fire  Department  v.  Stetson 

369,  380 
Fishel  V.  Lueckel..  .564,  591,  610 
Fischer  v.  Automobile  Supply 

Co 600 

Fischer  v.  Blanch 459 

Fisher  r.  Monroe 121,  156 

Fisher  v.  Star  Co.  .474,  475,  631 
Fitch  V.  Young.  .  17, 498, 557, 

558,  582 
Fitzgerald  v.  George  Newnes  162 
Flagstaff  Silver  Co.  v.  CuUins  391 
Flanagan  v.  Goldberg.  .  .311,  326 

Fleron  v.  Lackaye 92 

Fletcher  v.  New  Orleans ....   636 
Florence  Co.  v.  J.  C.  Dowd.  .  454 

Folsom  V.  Marsh 564 

Forbes  r.  Howard 232 

Ford  V.  Blaney  Amusement 

Co.. 13,   16,   17,  22,  546, 

556,  557,  594,  595 

Ford  V.  Hcaney 275 

Forsythe  v.  McKinney 162 

Foster-Milburn  v.  Chinn  273,  283 
Foster's  Agency,  Lim.,  v.  Ro- 

maine 179 

Fountain     Sq.     Theatre     r. 

Evans 130,  397 

Fowler  v.  Holmes 301,  327 

Fox    V.    Buffalo    Park.. 300, 

302,  312,  332 

Fox  V.  Dougherty 322 

Fox  V.  McClollan.  .351,  373, 

394,  398 

Francis  v.  Cockrcll 302,  303 

Francis  v.  Flynn 273 


Page 

Francis  v.  Oliver 582 

Francis    Day   &    Hunter    v. 

Feldman  &  Co 506,  656 

Frankenstein  v.  Thomas ....  499 
FrankUn  Film   Corporation, 

Matter  of 355 

Fraser  v.  Barrel 586 

Fraser  v.  Berkeley 65 

Fraser  v.  Edwardes 591 

Fraser  v.  Yack 526 

Frazee  v.  Edeson 104 

Frazer  v.  Frazer 477 

Fredericks  v.  Howie 344 

Fredericks  v.  Payne 340 

Freeman  v.  Trade-Reg.  .593,  595 

Freligh  v.  Carroll 538 

French  v.  Day 588 

French  v.  Gregory 590 

French  v.  Jones 358 

French  v.  Kreling 498,  632 

French  v.  McGuire 492 

French  v.  Quincy 250 

Frohman  v.  Fitch.  .2,  3,  8, 

75,  418 

Frohman  v.  Mason 149 

Frohman  v.  Miller.  .404,  447,  459 
Frohman    r.    Morris.  .407, 

419,  429,  443,  456 
Frohman    v.     Pay  ton.  .417, 

419,  429,  443,  456 
Frohman  Amusement  Co.  v. 

Blinkhorn 225 

Frowde  n.  Parish 32 

Fniit  Cleaning  Co.  v.  Fresno 

Homo  Packing  Co 532 

Fry  V.  Bennett 264 


TABLK   OF   CASES 


XXXI 


Pack 

Fullorr.  Bomis 20,  .WS 

Fuller  V.  Brown 15(i 

Fuller  V.  D(»\viiinK ll-t 

Fullerr.  Hull 457 

Fuller  V.  McDonnott 2S() 

Gabriel  r.  McCabe 72,  172 

Ciaiety    Tlietvtre     v.     Cissy 

iWtus KX) 

Gaittin  v.  Searle 158 

Gale  r.  BiiiKliam 300 

Gale  I'.  Lockie 70 

Gallagher  /•.  lludd 307 

Galliher  v.  Cachvcll 008 

Gallini  v.  Laborie 192 

Gannert  v.  Rupert 442 

Garrett  v.  Messenger 340 

Gast  V.  Falk 010 

Gates  I'.  Fraser 38 

Gath   V.    Interstate   Amuse- 
ment Co 138,  178 

Gaumont  r.  Hatch 578 

Gause  V.  Knapp 599 

General  Film  Co.  v.  Kalem 

(ieiu'sce    l^ecreation    Co.    v. 

lOdgorton.  .351,  354,  355, 

350,  373 

George  r.  Smith 410 

George  r.  I'liiv.  of  Minn.  .  .  .   325 
"George,  the         Count 

Joannes"  v.  Burt 05 

Gerald  r.  Inter  Ocean  Pul). 

Co 204 

(Jibson     /'.     Carruthers    Kx- 

chcquer ()0,  70 


Pa(;k 

Gilbars  v.  Jefferson 132 

Gilbert  r.  The  Star (507 

Gilbert  r.  Workman 57 

(Jill  f.  United  States.  .27,  32,  5.50 

Ciillett  V.  Bate 044 

Gilligham  i?.  Ilay 223,  228 

Ciilman  r.  Lamson  Co 113 

Giim  r.  AppoUo 625,  648 

Ginsberg  v.  Friedman.  .  .114,  103 

Gilmore  v.  Anderson 590 

Glaser  v.  St.  Elmo.  .403, 429, 

439,  447,  522,  571,  573 
Glen  &  H.  Mfg.  Co.  v.  Hall 

418,  407 

Glenny  v.  Lacy 115,  208 

Glenville  v.  Selig  Polyscope 

Co 589 

Glinseretti  v.  Rickards 161 

Glyn  V.  Miner 116 

Glyn    V.    Western    Feature 

Film  Co 535,  542,  599 

Cilynn    v.    Lyceum    Theatre 

Co 303,  306 

(joddard  v.  Morrissey 135 

Goelet  V.  Frohman 239 

Goldberg  v.  Popular  Pictures 

Corix)ration.l53,  187,  216,  219 
Golders  Green  Am.  &  Dev. 

Co.  V.  Relph 167 

Goldmark    i\    Krcling.  .400, 

500,  583 

Goldstein  v.  Levy 311 

GoUansz  v.  Dent 77 

(Jonsolis  r.  Gearhart 103 

Gooding  r.  Chutes 314 

Goodrich  c.  Busse 305 


xxxu 


TABLE   OF  CASES 


Page 
Goodyear  Shoe  Mfg.  Co.  v. 

Jackson 634 

Gordons.  Barr 99,  175 

Gottt-.  Pulsifer 64,  264 

Gottsberger  v.  Aldine 504 

Gould  V.  Banks 550 

Gould  V.  Springer 232 

Goulds;.  State 398,  400 

Gould's  Case 181 

Graddon  v.  Price 157 

Graham  v.  McKimm 65 

Graham  v.  Payne 316 

Grannan  v.  Westchester  Rac- 
ing Ass'n 296 

Grant  v.  Maddox 105,  124 

Grant  Richards,  In  re.  . .  .69,  647 
Gran  v.  McVickar. .  135,  196, 

237,  251 

Graves  v.  Garrie 672 

Gray  v.  Russell 564 

Gray  v.  The  0.xford,  Lim .  164, 192 

Gray?;.  Wulff 118 

Greater  N.  Y.  Film  Rental 

Co.  V.  Biograph 490 

Green  v.  Botheroyd 344 

Green  v.  Chapman 203 

Green  v.  Luby 503,  543 

Green  v.  Minzenshcimer.  .  .  .   542 

Green  v.  Savanali 365 

Cireenburg  v.  Early 70 

Grccnburg     v.    West.     Turf 

292,  296 

Groono  r.  Bishop 621 

Greene  r.  Seattle  A.  C 304 

Greonhali     Theat.     C'irc.     v. 
M:irkr)\vitz 135,   1  16 


Page 

Greenough  v.  Allen  Theatre  363 

Gregory  v.  Brunswick 331 

Gregory    v.    Tavernor.  .342, 

343,  649 
Gregory  r.  Tuffs.  .343,  344,  348 
Griffin  y.  Brooklyn  Ball  Club  165 
Griffith  V.  Tower  Pub.   Co. 

51,  67,  68,  69,  646 

Griggs  V.  Perrin 571 

Grimston  v.  Cunningham,.  96,  105 

Grinnell  v.  Kiralfy 160 

Griswold  v.  Ringhng 319 

Grocers  Journal  Co.  v.  Mid- 
land Publishing  Co 446 

Gross  V.  Seligman 539 

Gross  V.  Van  Dyke. .  590, 618,  619 
Grossman  v.  Canada  Cycle 

Co 506,  665 

Grotev.  C.,etc.,n.  R 302 

Gunter  r.  Astor 202 

Gustin  V.  Record  Pub.  Co . . .  623 

Haag  V.  Rogers 121,  162 

HaasiJ.  Feist..519,  533,  592, 

613,  614 

Ilackctt  r.  Walter 91 

Hagan    and    Dodd    Co.    v. 

Rigbers 469 

Haggard  v.  Waverly 519 

Ilahn  r.  The  Concordia  So- 
ciety     101 

Haines  v.  Thompson 120 

Haiiuiue     v.     Cyclops     Iron 

Works 161 

Ihilcrofl    r.   West    Kml    Pliiy- 
iiou.'^c,  \jU\ 17G 


TABLE    OF    CASES 


XXXlll 


Pa(;k 

Hall  ;•.  Aronson \'2{) 

Hall   /•.  CrcfMi :i42,  'M.i,  (H'.( 

Hall  r.  Pritclu'tt \S\ 

•Halloii  r.  Tliompson 120 

Hallcy  V.  Alloway 2;« 

Hallyhurtoii  r.  Burke  Co.  .  .  .  321 
HaliKTii  r.  Manhattan  Ave. 

Theatre  Curp 2")! 

Halstead  v.  Grinnan 608 

Haiiiilton  Shoe  Co.  v.  Wolf 

409,  403 

Hamlin  r.  Bender 255,  396 

Hainmerstein,     Matter     of 

351,  380,  398,  588 
Harnnierstein  v.  Belasco.  .  .  .  238 
Hainmerstein  v.  Mami.  .100, 

108,  110,  175 
Hammerstein  v.  United  Book- 
ing Offices 257 

Hammond  r.  Melton 315 

Hammond  Publishing  Co.  v. 

Smy the 486 

Hanfstaengl  v.  Smith 543 

Hanlin  v.  Walters 138 

Haimeton  v.  ICno 65 

Hanover  Milling  Co.  v.  Met- 

calf 458,  475 

Hanson  r.  Jaocard 583 

Hap(>lman  r.  Poole 1S3 

Hardacrc  v.  Armstrong.  .552, 

5!)2,  596,  613 

Hardie  v.  Balmain 176,  177 

Har](\v  /'.  Henderson.  ..  .158,  100 

Harms  r.  Stern 33,  20S,  ()15 

Harper    v.    Donohue.  .495, 

496,  554,  577,  649 


Vm.k 

Harper  r.  Holman ()03 

Har|)er  r.  Klaw 2,  3,  H,  9 

Harper  r.  Lare 140 

Harper  r.  Ranous.  .403,  40 J, 

437,  522 

Harper  r.  Shopix'll 587,  .589 

Harrington,  ex  parte 352 

Harrington  r.  Stillman 599 

Harris  r.   Carstens  Packing 

Co 315 

Harris  v.  Crawley 323 

Harris  v.  Commonwealth .  .  .    537 

Harrison  v.  Baltimore 369 

Harrison  r.  Conlan 70 

Harrison  v.  Maynard-Mcrrill, 

486,  632,  047 

Hart  V.  Aldridgc 202 

Hart  V.  City  Theatres 244 

Hart   V.    Cort.  .6,   73,    124,    125 

Hart  r.  Fox 82,  493,  592 

Hart  V.  Tliomp.^on 119 

Hart  ('.  Townsend 65 

Hart  V.  Wall 203 

Hart  V.  Washington  Park. . .  325 
Hart  V.  Woodbury  Dermat. 

Institute 28.3 

Harter.  De  Witt 57,  58 

Hartford  Fire  Ins.  Co.  r.  Wil- 
cox       .50 

Hartford  Print  Co.  r.  Hart- 
ford Directory 609,  026 

Harvey  r.  Tivoli,  Manchester 

Ltd KW 

Ha.skell  p.  0.sborn 110 

Hathaway  v.  Sabin 197 

Hatton  r.  Kean 2S,  .")2 


XXXIV 


TABLE    OF   CASES 


Page 

Haven  v.  Russell 73 

Hawkes  v.  Whaley,  Royce  & 

Co 671 

Hayes  v.  Smith 316 

Hays  V.  Eldor  Am.  Co 324 

Hays?>.  MiHer 314 

Hay  ward  v.  Hay  ward 184 

Hazzard  v.  Hoxie 230 

Heap  V.  Hartley 71 

Hearne  v.  Stowell 283 

Hefel  V.  White  Land  Co 516 

Hegeman  v.  Hegeman 479 

Hegeman  v.  Springer 637 

Hcin  V.  Harris 576 

Heine  v.  Applcton 27 

Heineman  v.  Smart  Set 26 

Hcndershott   v.    Modern 

Woodmen 310 

Henderson  v.  Tompkins. .  534, 

535,  594 
Hendricks  v.   Thomas  Pub- 
lishing Co 617 

Hene  v.  Samstag 538 

Heneky  v.  Stark 85 

Hennessy  v.  Herrmann 467 

Henry  v.  Cherry 269 

Henry  ».  Dick 46,  484 

Henry    Bill    Pul)l.     Co.    v. 

Srnythc 647 

Herbert  v.  Fields 39,  40,  52 

Herbert    v.    Shanlcy .  . .  340, 

341,  348,  392,  649 
I  Icrbert  r.  Universal  Talking 

Machine  Co 277 

Herbert  v.  Weber 52 

Hereford   (Hislu.p)  r.  Cridin     29 


Page 

Heme  v..  Liebler 41,  68,  75 

Herrick  v.  Wixon 322 

Herring   v.   Gas   Consumers 

Ass'n 45 

Herzog  v.  Heyman 633 

Heye  y.  Tilford 47 

Hicks  V.  Maxton 181 

Hier  v.  Abrahams 456 

Higgins  V.  Franklin  Co 325 

Higgins  V.  Keufel 518 

Higgins  V.  Lacroix 358,  371 

Hillzj.  Gibbs 44 

Hill  V.  Haberkorn 105 

Hill».  Lockwood 468 

Hill  I'.  Whalen 542,  582 

Hillis  &  Co.  ?^.  Hoover 623 

Hillman  v.  Star  Publ.  Co .  269,  275 

Hills  V.  Austrich 516 

Hills  t'.  Hoover 516,  623 

Hilson  V.  Foster 411 

Hinton  v.  Locke 125 

Historical  Publishing  Co.  v. 

Jones 582,  584,  602,  620 

Homng,Inre 192 

Hodges  V.  Mayor 359 

Hodkins  v.  McDonald 191 

HofTman  v.  Bond 349 

Hoffman  v.  LeTraunik.  .535,  603 
Hole  V.  Bradbury.  .  .  .51,  67,  646 

Hollenback  v.  Clemmer 307 

Hollis  V.  Kansas  City  Assoc. 

332,  334 
Holmes?'.  Hurst..  13,  IS,  496, 

507,  546,  556,  560,  561 
Holmes  v.  United  Theatres.  .  311 
Home  Fire  Ins.  Co.  v.  Barber  144 


TAULK    OK    CASES 


XXXV 


PA(iK 

Homo   (tf    Iii('l)iiat('s   r.  San 

Francisco 21'.) 

Hopkins  Amuse.  Co.  r.  I-'roli- 

inan 417,   IM 

Horner  r.  (Jtiardian  Mut.  Life 

Ins.  Co N;i 

Homey  r.  Nixon..  .2i)2,  293,  294 
Il'jstetter  v.  Hrueggenian.  .  .  .   461 

Houck  r.  Ingles ;J9.J 

Howard  /•.  Carlton 455 

Howard  r.  Daly 147,  14S 

Howard  v.  Ilenriciucs 41S 

Howard  r.  Lovett 443,  477 

Howard  v.  Woodward 102 

Howe  V.  Rohin.son 120 

Howell  V.  Miller 591 

Howley     Dre.s.ser     Co.,     In 

ro 040 

Hoxey  i\  Chaney 400,  47!) 

Hoyt  r.  Hates 553 

Iloyt  V.  Fuller 99 

IIul)l)ar(l  /'.  Mathews 530 

Huijhard  v.  Miller 102 

IIul)l)anl  r.  Taunton 21!t 

H'.ihhanl  r.  'V\un\\\)s{)\\ (iO? 

Ilubheil    ('.    Koyal    Paslinic 

Amusement  Co ('».")  1 

Hubges  /'.  Helasco 505 

Hud.son  Bldff.   Co.   /-.   Coin- 

pa^iiic    CliMi.     Tninsatlaii- 

ti(iue 143 

Hubinger  v.  Kddy 401 

Huebsch  v.  Crist.  .5!)4,    59S, 

013,  OlS 

Hughes  r.  Stratham 479 

Hull,  Re  C.  W 395,  397 


Hull  I'.  86th  St.  Amusement 

Co 298 

Humiston  v.  Universal  Film 

Mfg.  Co 28.5 

Humphrey  J".  Sea  Gull  Sjx?- 

ciahy  Co K2 

Humphries  v.  Armstrong..  .  .  605 
Humphries  r.  Tiiompson..  .50,  57 
lluneckc  /•.  W.  lirighton  Am. 

Co 300,  .323 

Hunt  r.  Bennett 209 

lluntington  v.  Claflin 143 

lluist  ;•.  Picture  Theatres,  Ltd  297 

Hyde  r.  Toronto  Theatre .32S 

Hydecker  /•.  Williams 110 

lekes  V.  State 210 

Ide  r.  Brown 104,  175 

Iliodor  Picture  Corp.  v.  Mich- 

ailoff 431 

Illinois  Central  v.  Byrne.  . .  .  195 
Iiuperial     Curtain     Co.     r. 

Strauss 22!> 

Imperial  Film  lOxchange,  In  re  202 

Inchbald  r.  Robinson 253 

Indian  Rubber  Co.  r.  Ruljber 

Comb.  Co 450 

International  Cheese  Co.   r. 

Pluenix  Cheese  Co 450 

Interstate  Amusement  Co.  r. 

Albert.  17S,  191,   190,  2.50, 

2.5S,  201 
Interstate  Am,  Co.  v.  Martin 

322,  32S 
Investor    Pul)lisliing    Co.    of 

Ma.ss.  /'.  Dobinson I  }.> 


XXXVl 


TABLE    OF   CASES 


Page 

lolanthe  Case 61 

Isaacs  r.  Daly 408,  447 

Ivan    Film    Productions    r. 
Bell 356,  377 

Jackel  V.  Nixon  &  Zimmer- 
man     259 

Jacko  V.  State 537 

Jackson,  Matter  of. .  : 489 

Jackson  v.  Baker 317 

Jackson  v.  Moore 44 

Jackson  v.  Walkie 511,  519 

Jacob  V.  Schiff 271 

Jacobson,  Ex  parte 392 

Jacobson  v.  De  Mille 573 

Jacoway  v.  Young 465 

Jaeger's  Co.  v.  Le  Boutillier .  .   473 
Janney  v.  Pan-Coast  Ventil- 
ator Mfg.  Co 413,  449 

Jaques  v.  Natl.  Exhibit  Co.. .  254 
Jeffries    v.    N.    Y.    Evening 

Journal 280,281,  284,287 

Jeffrys  v.  Boosey. .  .  492,  560,  662 

Jenkins  v.  Jackson 255 

Jerome  v.  Queens  City  Cycle  156 
Jeup  V.  State  Fire  Marshal .  .  369 
Jewelers'  Mercantile  Agency 

V.  Jewelers 496,  505,  506 

Jewel  Theatre  Co.  v.   AN'in- 

ship 362 

.Jewish  Col.  Ass'n  r.  Sf)lomon  468 
.loliiison  r.   Donaldson.  .560, 

57)},  574 
Jolinson    /'.    lluiui)lirey   Pop- 

("(.rn  Co 340 

Jdliiison  Co.  r.  IlunI  97 


Page 

Johnson  v.  Sparrow 298 

Johnson  v.  Wilcox 310 

Johnson  v.  Wilkinson 292 

Johnston    Harvester    Co.    v. 

Meinhardt 202 

Johnston  v.  Orr-Ewing 461 

Jolhe  V.  Jaques 403 

Jones  V.  American  Law  Book 

Co 62 

Jones  V.  Sandford 250 

Jones  V.  Van  Zandt 593 

Joseph  V.  Bidwell 298 

Joseph  V.  Elliott 396 

Journal  Pub.  Co.  v.  Drake.  .   637 

Joyner  v.  Moore 298 

Julian  V.  Hoosier  Drill  Co. . .  .  450 
Jung  Brewing  Co.  v.   Com- 
monwealth    255 

Jurgens  r.  Woodberry 466 

Kaiser  v.  (Jinberg 245 

Kaiser  Wilhelm  Second 529 

Kalem    v.    Harper.. 2,    338, 

418,  431,  587,  610 
Kalisthenic  Ex.  Co.  v.  Em- 
mons  379,  389,  390 

Karnor.PatheFreres. .  .537,  589 
Karst  r.  Prang  Educational 

Co 86 

Kathreiner  v.  Pastor-Kneipp  456 
Kay-Tec  Film  Exchange,  In 

re 227,  263 

Kcanc  r.  Wheeler 144 

Kecne  v.  Wheatley 582 

Keener  v.  Moslamlcr  21 1 

Keith?'.  Kellrrman.    101,  16S,  1>S7 


TABLE    OF    CASES 


XXXVli 


PA(iIO 
'Keith  &  Proctor  r.  Bingham 

393,  400 

Kolly  V.  Hylcs 44.S 

•Kelly  /'.  Cakhvoll 123,  140 

Kelly  r.  London  Pavilion.  .  .     l.'iO 

Keiulull  /'.  West 113,  208 

Kennedy  r.  J'rcss  Pul).  Co..  .     65 

Kennedy  r.  Holfe SI 

Kenyon  r.  \Vei.><sherg.  ...Ill,  1  Hi 
Kerker  r.  Lederer.  .78,  86,  93,  110 

Ke.s.sler  r.  ( 'liappellc 97 

Kcssier  v.  Dcutsch 301,  327 

Ketelhey  r.  Ma^Kett 88 

Keye.s  r.  Allerdyee 181 

Keyzor  r.  Newman 209 

Kidd  v.  Johnson.  .  .  ^  .  .  .465,  479 
Kicrnan  r.  Man.  Tel.  Co.  . .  .   505 

Kiiifjj  r.  liroadhurst 179 

King  r.  McAulilTe 357,  379 

King  r.   Hinnling 312 

King  V.  Will  J.  IMoch  Amuse- 
ment Co 132,  195 

King  /•.  Woodfall 283 

Kingman  r.  Brockton 249 

Kipling  r.  Fenno 55 

Kipling  r.  Putnam.  .455,4S6J 

54-i,  04S 

Kiralfy  ;-.  Maeauley 151 

Kirelmer  r.  Cruhan 100 

Klaw   V.    CJeneral    Film   Co. 
416.    419,    420,   421,   424, 

429,  433,  444,  454 
Klaw     /'.    Xew    York    Press 

Co    265 

Klein  /'.  Heaeh.  .2,7,8,39,42,43 
Kliger  r.  Kosenfeld 621 


P.m;k 

Klinger  r.  Pyaii 3()0,  394 

Knottnerus r.  North  Park.  .  .  .'^.32 

Koelhle  r.  Woods 259,  401 

Kohn,  Matter  of  (Wagener, 

Sissoii) 365 

Koppel  V.  Downing 497 

Kramer  r.  Wein 114 

Kreider  c.  State 398 

Krier  r.  Mayor 371 

Krics  V.  Dick 3.50 

Kunz  V.  Bos.selman 270,  277 

Kurlan  v.  Gutman 99 

Kurtzmann  v.  Kurtzmann. .  481 
Kyle  r.  .lelTerys 552 

La  Crandall  r.  Ledbitter  130,  392 
La  Ilepublifiuc  Franc,aise  v. 

Saratoga  Spring  Co 463 

La  Soeieta  r.  San  Francisco.  .   249 

Lacy  r.  Houck 99 

I^cy  r.  Osbaldiston. . .  .124,  162 

Lacy  r.  Toole 22,  71,  557 

Ladd  r.  Oxnartl.  .  .505,  607,  618 

Laird  r.  Pittsburg 249 

Lalanee    (t    Grosjean    Mfg. 
Co.  ('.  Nat'l  Enameling  it 

Stamping  Co 39,  42,  43 

Lamb  r.  Grand  Kapids  Fur- 
niture    541 

Landa  r.  Greenburg 61 

Landeker  v.  WoHT..71,  552,  5.")7 

Landrcth  r.  Landreth 477 

Larrowo-Loisett«  r.  O'Laugh- 

lin .505 

Livsky  r.  Celel)rated  Players 
Film  Co 223,228 


XXXVUl 


TABLE    OF   CASES 


Page 

Laskyz).  Fox 201 

Lasky  Feature  Co.  v.  Suratt  175 

Latham  v.  Roach 306 

Latour  y.  Bland 492 

Laurelle  v.  Bush 345 

Lauri  v.  Renad 44 

Lavin  v.  Birch 592 

Lawrence  v.  Aflalo 27 

Lawrence  v.  Bushnell 544 

Lawrence  v.  Dana.  .27,  511, 

550,  609 

Lawrence  v.  Dance 534 

Lawrence  v.  Dixey.  .96,  101,  103 
LawTence  Mfg.  v.  Tennessee 

Mfg 461 

Leather   Cloth   Co.   v.   Am. 

Leather  CI.  Co 479 

Leavitt  v.  Kennicott 124 

Leavitt  v.  Windsor  Land  & 

Investment  Co 188,  245 

Lc  Page  Co.  v.  Russian  Ce- 
ment Co 453,  466,  469 

Lederer  v.  Ferris 586 

Lederer  v.  Rankin 586 

Lederer  v.  Saake 593,  598  • 

Lee  V.  Gibbings 55 

Lee  V.  State 345 

Lecson  v.  General  Council .  .  .   360 

Lempke  v.  State 398 

Lennox  v.  Curzon 240 

Lconrini  v.  Post 499 

Lcrncr  v.  Tctrazzini 103 

lAisVuiv.  Robic 121 

Lester  v.  Palmer (530 

Ixjthridge  v.  Wilson 351,  352 

Levin  v.  (joodwin 255 


Page 

Levinsky  v.  Cooper 324 

Levis  V.  Hitchkock 280 

Levison  v.  Oes.  .79,  150,  190,  220 

Le\'y  V.  Rutley 36,  37 

Levy  y.  Yates 192,  344 

Lewis  V.  Arnold.  .  .293,  328,  330 
Leyland  v.  Stewart ........   552 

Lichtenstein  v.  Fisher 143 

Liddell  V.  Copp-Clark  Co.  . .  599 
Liedertafel  Case,  Jude's.  . . .  580 
Liedertafel  Series,  Re  The.  .  .  557 
Life  Photo  Film  v.  Bell.  .357,  375 
Liggett  &  Myers  Tobacco  v. 

Finzer 461 

Lillard  v.  Sun  Printing  Co.  .  .   637 

LindenmuUer  v.  People 127 

Lingenfelter,  Ex  parte 397 

Linthicum  v.  Truitt 323 

Linton  r.  U.  F.  Co 163 

Lipshutz  V.  Proctor 116 

Liquor  Tax  Cases 346 

Little  V.  City  of  Madison 317 

Littler.  Gould 27,  550,  582 

Littlefield  r.  Perry 582 

Livingston,  In  re 175 

Livingston  v.  Klaw 145 

Loftus  V.  Roberts 117 

London  r.  Biograph 573 

London     &     Provincial     El. 

Theatres,  Ltd.,  ex  parte.  . .  351 
London    Assurance    Co.     /'. 

Dreuiien 47 

London  Co.  Council  v.  Ber- 

mondsoy  liioscopc  Co 361 

London  Music  Hall  r.  Austin 

96,  118,  124 


TAPLE    OF   CASES 


XXXIX 


Page 

London  Music  Hall  p.  Poluski 

107,  108 
I^)ncion  Theatre  of  Varieties 

r.  Kvans 6,  107 

London   rnivcrsity   Press   r. 

University  Tutorial   Press    29 

Ix)ng  r.  Bowrinp 102 

T^orenz  v.  liartuschek.  .  .  142,  191 

Lorettc  v.  Collins 177 

I^jrillard  r.  Clyde 70 

Lover  r.  Davidson 534 

Levering  r.  Miller 120,  123 

Lowell  r.  Spaulding 303 

I^owenfeld  v.  Curtis 60 

Lubin  r.  Swaab. . .  .224,  235,  236 

Lucas  V.  Cooke 71,  557 

Lucas  V.  Moncrieff 69 

Ludwigh  V.  Payson 460,  5S5 

Lumley  r.  Gye 202 

Lumiansky  r.  Tessier 241 

Lumley  r.  Wagner 96,  99 

Lumsden  v.  Thompson  Scenic 

Ry 323 

Luskr.  Peck 300,  302,  312 

Luxemburg  v.  Keith 292 

Lyons,  Sons  &  Co.  v.  Gulliver  252 

Lyric  Theatre  v.  State 399 

Lytton  V.  Devey 493 

McAllister  v.  Simon 336 

McHride  &  Co.,  In  re  D.  IL  645 

McCain  r.  Majestic  Bldg.  .  .  333 

McCauU  r.  Hrahum 96 

McCrea  r.  Marsh 292 

McCullough  r.  Pence 86 

McDerraott  v.  Bd.  of  Trade . .  505 


Pagk 
McDonald  v  Hearst.197,  637,  591 

McDonnell,  In  re   644 

McGee  v.  Kennedy 302 

McGiffen  r.  Baird 592 

MacGowan  v.  Duff 32.S 

MacGregar  r.  Gilmore 122 

Mclndoo  r.  Musson  Book  Co. 

412,  448,  585 

Mcintosh  r.  Miner 123 

McKeage    v.    Hanover   Fire 

Ins.  Co 233 

McKenzie  r.  McCIellan.  .350,  351 
McLaughlin  r.  Hammerslein 

119,  158,  160 
McLaughlin  v.  Raphael  .  521 
McLean    v.    Fleming..  .405, 

423,  430,  452,  456 
McLelliHi  r.  Goodwin.  . . .  168,  188 

McLeod  V.  State  398 

Macleod  r.  Wakely .  .  65 

Macmillan  Co.  r.  Dent..  .493,  579 

McMillan  r.  King 608 

McNeill?'.  Williams 603 

McQuirc  v.  Western  News   .    203 

McVittie  v.  Turner 368 

Macalay  r.  Pre.'^s  Pub..  Co. 

158,  163 

Mack  V.  Petter 445 

Mackay  v.  Mackay 551 

Mackaye  v.  Mallory 168 

MacKenzie  v.  Soden  Mineral 

Springs 270,  273 

Macklin  r.  Richardson .  .  .  .  497 
Mahonoy  City  r.  Hersker.  . .  347 
Mail  &  Express  r.  Life  Pub. 

Co 17,  545,  627 


xl 


TABLE    OF   CASES 


Page 

Maitland  v.  Company 592 

Majestic  Theatre  v.  City  of 

Cedar  Rapids 399 

INIallory  v.  Mackaye.  .32,46, 

51,  62,  67,  16S,  187 
Manchester  Palace  v.  Man- 
chester Corporation 360 

Manger  Bros.  v.  Shipman.  .  313 

Mann  v.  Maurel 76 

Manners  v.  Triangle.  .  .  .427,  444 
Mansell   v.    Valley   Printing 

Co 275,  492 

Manufacturing  Co.  v.  Wilson  461 
Maple-son  v.  Bentham .  96,  107, 124 
Mapleson  v.  Del  Puente. .  102,  109 

Mapleson  v.  La  Blache 101 

Mapleson  v.  Sears 124 

Maratta  v.  Heer  Dry  Goods 

Co 164 

Marble  v.  Ross 314 

Marconi  Wireless  v.  Simon. .   109 

"Mark  Twain  "Case 212 

Markham  v.  Southern  Con- 
servatory of  Music 343 

Marks    v.    Benjamin. .  .341, 

343,  344,  348 

Marks  I'.  Jaffa 270 

Marks       Realty       Co.       v. 

"Churchills" 232 

Marks  Realty  Co.   v.  Hotel 

Ilorrnitagc 232 

Marks  Realty  Co.  v.  Rectors .   232 

Mannct  v.  State 345 

MuKiuet  V  La  Duke 317 

Murrotio       v.       Washington 
Jockey  Clul) 292,  294 


Page 
Marsh  v.  Conquest.  .550,  587,  588 

Marshall  v.  Bull 554 

Marshal  v.  Broadhurst 70 

Marston  v.  Swett 592 

Martin  v.  Hunt 70 

Martinetti  v.  Maguire 535 

Marvin  v.  Brooks 87 

Marx  V.  Miller 140 

Marx  V.  Ontario  H.  &  A.  Co.  324 

Mary  v.  Hubert 670 

Masson's  Appeal 610 

Mastad  v.  Swedish  Brethren 

327,  332 

Matsell  V.  Flanagan 443 

Mathers  v.  Green 38 

Matter  of  Allen 341 

Matter     of     Armstrong     v. 

Murphy 350,  358 

Matter  of  City  of  New  York 

(Re  Hammcrstein) 338 

Matter  of    Ormsby  v.    Bell 

354, 357 
Matter  of  Simons  v.  McGuire  350 

Mattice  v.  Wilcox 65 

Maurel  v.  Smith 36,  52 

Mawman  v.  Tegg 621 

Mawson  v.  Leavitt 152 

Maxwell    v.    Goodwin.  .560, 

564,  591,  626,  627 
Maxwell  Steel  Vault  Co.  r. 

Nat' I  Casket  Co 599 

May  V.  Burdett 317 

May  V.  Chaffee 41 

Mayer  v.  Nethorsolo 169,  187 

Mayor  of  N.  V.  City  r.  ICdcn 

Mu.see 339,  341 


TABLE    OF    CASES 


xli 


]\\r.K 
Meachcm  r.  Jamestown  K.  I{. 

Co U.i,  I'll 

Mecaho  v.  Jones 20!) 

Meccano  i'.  VVaRner 541 

Meeker  v.  Smith 325 

Mehlos  r.  City  of  Milwaukee.  340 

Meibus  r.  Dodf^e 31G 

Meisner  v.  Detroit 202 

Melsheimcr  r.  Sullivan 310 

Menclicii  ;•.  l)('iivill(> 581 

Menendoz  r.  Holt .  .450,  452,  450 

Merivale  v.  Carson. .  . 204 

Merle  V.  Soc.  Research*  .200, 

272,  280,  282 

MerivU  r.  Tice 593,  598 

Merriam  Co.  v.  Famous  S.  & 

C.  Co 438,  439 

Merriam    Co.    r.    Halloway 

Pul).  Co ".  438 

Merriam  Co.  v.  Ogilvie.  .438, 

439,  442 

Merriam  Co.  r.  Strauss 438 

Merriam  Co.  /•.  Saulficl(1.430,  438 
Merriam  Co.  r.  Texas  Siftings 

Co 438 

Merriam  Co.  r.  United  Dic- 
tionary Co 517,  593 

Message    Photoplay    Co.    r. 

Bell 354 

Messenger  r.  Press  Publ.  Co. .  281 

Messenger  r.  State 280 

Messer  r.  Fadettes 400,  478 

Metropolis    Theatre    Co.    r. 

City  of  Chicago 352,  359 

Metropolitan   Opera   Co,    r. 

llammerstein 210,  201,  489 


V.KC.K 

Mctroptjlitan  Ex,  Co.  r.  Ward  100 
Metts  p.  Charleston  Theatre  3^11 

Mctzlcr  r.  Wood 440 

Meyer  v.  CJrand  llapids  Chair 

Co 311 

Meyer  r.  Rcdmund 197 

Meyers  r.  Walton 179 

Michelstree  r.  Stair 310 

Mifflin     V.     Dutton.  .13,  18, 

511,  540,  5.^)0 
Mitiliiir.  White.  13,  18,511, 

540,  550 
Miles  Medical  Co.  v.  Park  & 

Sons 202 

Millar  r.  Taylor 490,  018 

Miller  v.  Lawrupcc •143,  248 

Millington  v.  Fo.x 401 

Mills  r.  Standard  Music  Roll 

Co 545,  019 

Mines  v.  Scrilmer 490 

Ming  n.  Pratt 150 

Miracle  Co.  v.  Danziger.  .413, 

443,  4.54 

Mirsky  /•.  .\dler 333 

Mitchell  r.  Hawley 481 

Molloy  V.  Starin 315 

Monaiian  v.  Taylor 587,  588 

Montague  r.  Flockton.  .  .  123,  143 

M(jntgomery  r.  Ladjing 330 

Montgomery       r.       Water- 
bury 592 

Moore  V.  Coyne 80 

Moore  r.  Edwards 21 

Moore  r.  Owen 398 

Moore  r.  Rugg 590 

Morang  r.  Lo  Sueur.  .58,  89,  207 


xlii 


TABLE    OF   CASES 


Page 
Morang  v.   Publishers'  Sj'^n- 

dicate 671 

Morasse  v.  Brochu 283 

Morgan  v.  Roberts 50 

Morgan  v.  Rogers 466 

Morgan  v.  Walton 455 

Morgan  Envelope  Co.  v.  Al- 
bany Paper  Co 587 

Morosco  V.  Fendall 574 

Morris  v.  Briggs 144 

Morris  v.  Colman 72,  96 

Morris  v.  Kelly 497 

Morrison  v.  Belcher 63,  203 

Morrison  v.  Hurtig  &  Seaman 

136, 162 

Morrison  r.'Pettibone 623 

Morrison  v.  vSmith 283 

Moshier  v.  Kitchell 50 

Moss  V.  Donahue 529 

Moss  Motion  Picture  Corp.  v. 
Ivan     Film     Prod.,     Inc. 

426,  447 

Mo.ss  V.  Tompkins 150,  247 

Motion  Picture  Patents  Co.  v. 

Universal  Film 485 

Motorboat  Pub.  Co.  v.  Motor 

Boating  Co 440 

Mott  Iron  Works  ?'.  Clow.  .  .   541 
Moul  V.  The  Coronet  Theatre, 

Ltd 588 

Mu(konfa.ss,  Ex  parte..  .392,  397 

Mulicr  V.  M(;Kess()n 315 

Mullor  V.  Rittersville  Hotel.  .   235 

Mundcn  v.  Karris 273,  278 

Munro  v.  Tousey.  .405,  406, 

433,  4  17 


Page 
Murray  v.  Gast  Lithographic 

Co 269,  270 

Murray  v.  Walter 203 

Murrellz;.  Smith 318 

Muser  v.  Robertson 599 

Mutual  Film  Corp.  v.  City  of 

Chicago 387 

Mutual  Film  Corp.  v.  Hodges  387 
Mutual  Film  Corp.  v.  Indus- 
trial Commission  Ohio.  288,  384 
Myers  v.  Callaghan 519 

Nahser  v.   City  of  Chicago 

255,  365,  371 

Nash  2).  Krieling 141,  213 

National  Car  Brake  Co.  v. 

Terre  Haute  Co 457 

Nat'l  Cloak  &  Suit  v.  Kauf- 
man  , 532,  541 

Nat'l  Cloak  &  Suit  Co.  v. 
Standard  Mail  Order  Co. . .   541 

Naulty  V.  Bulletin  Co 64 

Ncet,  E.\  parte 397 

Neher  v.  Viviani 242 

Neilson  v.  Horniman 578 

Nelson  v.  A.  H.  Woods  Prod. 

Co 127 

Nelson  Theatre  Co.  v.  Nelson 

242,  247 

Neplilor  V.  Woodward 309 

Nethensole  v.  Bell 567 

Neucndorff  v.  Duryea 395 

Neufeld  v.  Chapman 82 

New  Castle  v.  Cicnkinger.  . . .   381 
New  Fiction  Co.  r.  Star  Co. 
26,  5:51,  545,  553,  577,  578,  580 


TABLK    OF   CASES 


xliii 


Pack 
New  Theatre  r.  Ilartlove.  .  .  30S 
New  Tivoli  v.  Happy  Fanny 

Fields lOG 

New  York  v.  Eden  Musec. . .  398 

New  York  City  r.  Pine 610 

New  York  r.  Williams '.VM't 

New  York,  Matter  of 396 

New  York  Academy  of  Music 

r.  Hackett 79,  150,  242, 

New  York  Bank  Note  Co.  r. 

Hamilton    Engraving    Co. 

624,  625 
New  York  Herald  r.  Ottawa  475 
New   York    Herald    r.    Star 

Co 475 

New  York  Life  Ins.  Co.  r. 

Allison 233,  234 

N.  Y.  Motion  Picture  Co.  v. 

Universal  Film 489 

N.    Y.    Phonograph    Co.    v. 

Davega 67 

N.  Y.  Star  Co.  v.  Sun  Print- 
ing ife  Pub.  Ass'n 598 

N.  Y.  Times  v.  Star  Co.  .502, 

597,  598 

Newcomer  r.  Blaney 120 

Newhall  r.  .\ppleton 125 

Newman  r.  (latti 105,  141 

Newman  v.  Zachary 202 

Nichols      r.      Amalgamated 

Press 82 

Nill.son  V.  De  Haven 82,  592 

Nillson  r.  Lawrence.  .37,  39, 

42,  44 

Ni.sbet  V.  Golf  Agency 32 

Nixon  V.  Doran.  .93, 569, 570, 603 


Pagk 
Nixr)n  &  Zimmerman  v.  Ijco. 

LiLsh  Co ZU) 

N.  K.  Fairbank-s  Co.  r.  Wind- 
sor  4.'i5,  4.')6 

Noack  r.  Wo.'^slick 299 

Noebius  r.  De  Jong  &  Co.  . .  .  453 

Norton  v.  Hudner 311 

Nottage  r.  JacLson 596 

Oakes  v.  Tonsmierre 480 

Oakland  r.  Bingham.  . .  .301,  327 

O'Brien  r.  Jones 592 

O'Callaghan     r.     Dellwood 

Park  Co 323 

O'Connor  r.  Amicmr  Packing 

Co 139 

Oellers  v.  Horn 343 

Oertel  r.  Jacoby 506 

Oertel  r.  Wood 492 

Ogilvie  V.  Merriam  Co. .  .438,  442 
Old  Colony  Trust  Co.  r.  Du- 
buque Co 608 

Oldknow  r.  City  of  Atlanta .  .  367 

Oliver  r.  Lansing 232,  235 

Oliver  r.  Rumford 67,  646 

Oliver  r.  State 397 

OUendorf  r.  Black 662 

Olympic  A.  C.  v.  Bingham ...   400 
Oneida  Community  v.  Oneida 

455,  459 
O'Neill  V.  General  Film  Co. 
2.'),  492,  493,  498,  573,  574, 

Oriental  Society,  In  re 262 

O'Rourke,  Matter  of 371 

Orr  V.  John.son 457 

Orton  V.  Brown 359 


xliv 


TABLE    OF   CASES 


Page 

Osborne  v.  Schenck 40,  41 

Osgood  V.  Allen.  . .  .403,  446,  455 
Osgood  V.   Aloe  Instrument 

Co 513,  593,  595 

Outcault  V.  Bonheur 91,  592 

Outcault  V.  Lamar.  .405,417, 

443,  474 

Owen  V.  Partridge 279 

Owens    V.    Assoc.    Realties 

301,  308 
Oxford  ^'.  Leathe 334 

Pagano  v.  Beseler 539 

Paige  V.  Banks 548,  618 

Palace  Theatre  v.  Clency.  .99, 104 

Palestine  v.  Minor 255 

Palmer  v.  De  Witt.  .21,  492, 

493, 494, 496. 497,  504,  583,  580 
Palmer    v.    Nat'l     Sporting 

Club 270 

Palmer  v.  Snow 391 

Pankhurst  v.  Kinsman 47 

Pappas  V.  Miles 151 

Paris  V.  Commonwealth ....   255 

Park  V.  Morgan 359 

Park  &  Pollard  Co.  v.  Kellcr- 

strass 620 

Parker  v.  Cushman 315 

Parker  v.   Hyde  &  Behman 

Amuse.  Co 113 

Parkinson  v.  Lasellc 511 

Parry  ».  American  Opera  Co.  145 

Parsons  r.  Manser 315 

Partlow  V.  Ilaggerty 314 

I'arton  v.  Prang.  .  .492,  506, 

554,  .59() 


Page 

Pastor  V.  Solomon 167 

Patrick  v.  Wood 345 

Patterson    v.    Ogilvie    Publ. 
Co.. 523,    554,    594,    618, 

619,  638,  644,  645 
Pattison  v.  Hammerstein ....  335 
Pattison  v.   Li\nngston  Am. 

Co 308 

Paulton  V.  Keith 197,  345 

Pavesich    v.    New    England 

273,  283 

Pearce  v.  Spaulding 292 

Pearson,  Ltd.,  v.  J.  P.  O'Con- 
nor    448 

Peck  V.  Tribune  Co 269,  283 

Peerless    Feature    v.    Fields 

98,  110 

Penrose  v.  Nixon 254 

People  ex  rel.  Edison  v.  As- 
sessors    648 

People  ex  rel.  Rota  v.  Baker 

354,  375 
People   ex   rel.    Bonfiglio   v. 

Bingham 350 

People   ex   rel.    Park   Circle 
Am.  Co.  V.  Board  of  Police  350 

People  V.  Brown 393 

People  V.  Busse 371 

People  V.  Campbell 341^  342 

People  V.  Coleman 359 

People  ex  rel.  Lodes  v.  Dept. 

of  Health 354 

People  V.  Dixf)n 399 

People  V.  Doris 357,  373 

People  r.  Dunford 395 

P(!()ple  V.  lOwcr 176 


TABLE    Ol'   CASES 


xlv 


Page 

IVcplor.  Finn 393,  31)5 

IVopIc    ox    rcl.    .Jacques    r. 

Flalierty 370 

IVople   ex    nl.    liurnliani    r. 

Flynn 2<)1,  2% 

I'eople  ex  rel.  Valensi  v.  Flynn  393 
People  ex  rel.  Moses  r.  Clay- 

nor -.308,  301 

People    ex    rel.    Schwab    v. 

C;rant 3.'>0,3.")4 

l'eoi)le  V.  Ilammcrstein 398 

People  r.  Hart 294 

People  r.  Ilaym 398 

People  r.  I  lemleb 393,  394 

I'tMtplo  V.  Jensen 370 

Pcoplo    ex    rel.    Bender    v. 

.Joyce 394 

People  r.  Keller 341,  348 

I'coplc  V.  Kennedy 340 

Pcoi)Uw.  Kins 292,  298,  341 

People  r.  Kingston 400 

Peoi)lc  r.  Klaw 489 

Peojile  ex  rel.  United  States 

Aluminum  Co.  r.  Knight.  .   G18 
People  ex  rel.  Kicley  r.  Lent 

3.">!),  300,  307,  39.5 
People    ex    rel.     \'alensi    v. 

Lynch 393 

People  V.  Marks 382 

People  V.  Martin 341,  348 

People   ex   rel.    McXulty   r. 

Maxwell 3.-)0 

P(M)pl(>  (>x  rel.  Armstrong  v. 

Murphy 37.") 

People  ex  rel.  Keller  /'.  Oak 

Park 303 


Page 
People  t.  O'Gorman  .396 

Pf'ople     ex     rel      l^mge     p. 

Palmitter      36.'),  '.iXi 

I'eoplcex  rcl.  Klingerr.  Hand  .394 
People    ex    rel.    John.son    v 

Roberts 048 

People  r.  Royal      341,  .342 

People  V.  Samwick    370 

People    ex    rel.    Jacques    v. 

Sheriff 381 

People  r.  Steele 382 

People  V.  Stevens 1 76 

People  V.  Trippi 370 

People  r.  Wacke 34 1 

People  ex  rel.  Ritter  r.  Wal- 
lace     340 

People  ex  rel.  Schau  v.  Wil- 
liams    3.30 

People  ex  rel.   Cumiskey  v. 

Wurster 349,  .352,  3^ 

Pepl(;  V.  Corastock 68,  75 

Pepper  r.  Labrot 466 

Perley  v.  Shubert 258 

Perris  r.  llexamer 560 

Perry  v.  Bates 117 

Peters  v.  Borst.  .   27,  34,  36,  208 
Pettes  V.  American  Clock  Co.  463 

Pevely  r.  Poole 114,  208 

I'hila.  Ball   Club    v.    Lajoie 

96,109 

Philii);'.  Pennell 493 

Philipp    Co.    r.    New    York 

Staats-Zeitvuig 260 

Pliillil)s  r.  Alhaitibra  Palace  101 

Phillips  r.  Inez 391 

Phillips  V.  Wisconsin  State.  .  325 


xlvi 


TABLE    OF   CASES 


Page 
Phoenix  Ins.  Co.  v.  Continen- 
tal Ins.  Co 102 

Photo  Drama  Motion  Pict. 
Co.  V.  Social  Uphft  Film 
Corp.. 2,  5,  9,  11,  12,  48, 

110,  496,  553 
Pierce  v.  Werckmeister .  .505, 

511,  513,  593 

Pierpont  v.  Fowle 548 

Pieschel  v.  Miner 313 

Piexotto  V.  Board  of  Educa- 
tion   355 

Pike  V.  Nicholas 570 

Pitts  zj.  Hall 37,  46 

Placide  v.  Burton 166 

Planche  v.  Braham 562 

Planch6  v.  Colburn 77,  90 

Pointer  v.  Mountain  R.  C.  C.  323 

Polkr.  Daly 147 

Pollock  i».  Shubert 131 

Pollard  V.  Photographic  Co. 

272,  596 

Popplewell  V.  Pierce 314 

Porter  v.  Freudenberg 530 

Posen  V.  Schvvarz 425 

Posner  Co.  v.  Jackson 202 

Pott  V.  Altemus 604 

Potter   V.    McPherson.  .406, 

441,  506 

Potter  ?'.  Watt 366,380 

Pou.ssard  r.  Spiers 157 

Powell  I'.  Head 37,  39 

Powers  r.  O'Neill 336 

Pratt  V.  Montegriffo 105,  106 

Pratt  V.  Paris  (Jasliglit  <fc 
Coke  Co 630 


Page 
Press  Association  v.  Northern, 

etc.,  Agency 23 

Press  Publ.  Co.  v.  Falk 596 

Press  Publ.   Co.  v.  Monroe 

27,  493,  494,  498,  499,  556,  627 
Prince  Albert  v.  Strange.  .492, 506 

Probosco  V.  Bonj'on 466 

Pulte».  Derby 19,  632 

Purcell  V.  Daly 292 

Pusey  V.  Miller 38,  42,  43,  44 

Quaglieni  v.  Mathews.  .342, 

343,  649 

Quarg,  Ex  parte 381 

Quarles  v.  State 398 

Queen  v.   Commissioners  of 

Inland  Revenue 361 

Queen  v.  County  Council ....  360 
Queensberry  v.  Shebbeare. . .  492 
Quong  Wo,  Ex  parte 365 

Rafalo     V.     Edelstein.  .137, 

139,  141,  142,  162 
Raleigh    v.    Kinematograph 

Trading  Company 445 

Ramonas   v.    Grand    Rapids 

Ry.  Co 322,323 

Read  v.  Conquest 490,  560 

Reade  v.  Bentley.  .51,  67,  68,  646 

Reade  v.  Swectzer (55 

Record  &  Guide  Co.  v.  Brom- 
ley  515,518 

Rectanus  i)o.  v.  United  Drug 

Co 4()2 

Hc(lrii()iid     r.     Nat'l     Horse 
Show 300 


TABLE    OF   CAHE8 


xl\ii 


PA(iK 

Reed  v.  Carusi 574,597 

Ilccd  v.  Ilolliduy 591.  COS 

Hoes  t\  IVltzcr 49(i,  ")().") 

Kecs  IK  Uoljhiiis 57;i 

Hooves    r.     Fourteenth     St. 

Theatre 'Ml 

RoR.  V.  lianics ;i9S 

Reg.  /'.  Stnigiiell 344,  MH 

Reg.  V.  Tucker 341 

l{eichart  /'.  Sapte 574 

Reid  r.  Wilson 349,  393,  4(X) 

Heinhanlt  r.  Sniitli 023 

Roiiard  v.  Carl  Ro.sa  Opera 

Co 204 

R.     v.    Asliton,    Ex    parte 

Walker 349 

R.  r.  BaldoH 635 

Rex  V.  Carlile 254 

Rex  r.  Charron 393 

Rex  V.  Daoust 61 

Rex  r.  Paton 371 

Rex  V.  Hazza 365 

R.  v.  Hannay 349,  363,  369 

Rex  V.  Jone,s 292 

R.  V.  Loudon  County  Council 

358,  360 

Rex  V.  Moore 254 

Rex  V.  Ouimet 39S 

R.  V.  Rosenthal 34S 

R.  r.  Sheerness  County  Coun- 
cil    3(i() 

Rexr.  Willetts 635 

R.  r.  W^)Ifo 344 

R.  r.  Yorkshire  County  Coun- 
cil     o(i() 

]{ovincr\-  liros.  r.  Iluvler's.  .   461 


Page 
Rhodes  v.  Sperry  &  Hutchin- 
son     271 

Hicer.  Miner 176,  177 

Ricliards  r.  Wrijschner 529 

Richardson  v.  Bos.selman. .  .  .  623 
Hicliard.son  v.  I).  M.  Osborn 

&  Co 60S 

Richmond  R.  Co.  r.  Moore.  .   332 
Ricordi  v.  Haminerstein .  .  .  .    <305 

Ricorth  r.  Mason 562 

Hi(lg(>  r.  l]nglish  Illustrated 

Magazine 56 

Ridgway  Co.  v.  Amalgamated 

Press 409,448 

Riddle  r.  McFadden 278 

Higiioy  r.  Dutton 521 

Rignoy  r.  Rapliael 521 

Ritchie  v.  Sayres. 608 

Ritter  v.  Wallace 354,  355 

Roherson  v.  Rochester  Fold- 
ing Box  Co 2()S,  273, 

277,  280,  290 

Ro!)erts  v.  Myers 30,  581 

Robertson  v.  Berry  .  .61,  404,  441 

Rohorts  r.  Sheldon 4^8 

Rohey  r.  Arnold 145 

Robcy  r.  Stratton 145 

Robinson  r.  Davison. 156,  157,  161 
Robin.son  v.  Illustrated  lAm- 

don  News 552 

Robinson  r.  Textile  Publ.  Co.  278 
RobI  V.  Palace  Theatre. .  .571,  576 

Rock  r.  Lazarus .  .  .  , 5.32 

Hodgors  /•.  N.)\vill 469 

H.ulwcll  r.  Rotlgo 193 

Rogers  /'.  l-A'arts 202 


xlviii 


TABLE    OF   CASES 


Page 

Rogers  v.  Rogers 313 

Rogers  v.  International  Silver 

Co 468 

Rolfs  V.  Pooley  Furn.  Co. .  . .   156 

Romeike  v.  Romeike 481 

Root  t'.  Railway 582,609 

Roquemore,  Ex  parte 397 

Rosbach  v.   Sackett  &  Wil- 

helms  Co 163 

Rose  Ball  v.  The  Tribune ....  283 
Rose  V.  McLean  Publishing 

Co 412,440 

Roseneau  v.  Empire  Circuit .    257 

Roserie  v.  Kiralfy 139 

Rosenwasser  v.   Amusement 

Enterprises 247 

Ross  V.  Raphael 521 

Roumfort  Co.  v.  Delaney ....  369 
Rosenberg  v.  Arrowsmith .  .  .   397 

Rothenberg  v.  Packard 144 

Routledge  v.  Low.  .661,  662,  665 
Roy  Watch  Co.  v.  Carman 

Roy  Watch  Co. . 459 

Royal  Albert  Hall  v.  London 

Council 344,347 

Royal  Aquarium  Soc.  v.  Park- 
inson    360 

Royal  Baking  Powder  v.  Ray- 
mond  450,453 

Royle  V.  Dillingham 56,  59 

Roys  V.  Johnson 193 

Rudge-Whitworth,    Ltd.,   v. 

Houck  Mfg.  Co 110 

Hugglfs?'.  Eddy 582 

I{upi)  &  Wittgenfcld  v.  ElUot 

587 


Page 
Rushbrook  r.  Grimsby  Pal- 
ace Theatre 183 

Russell  V.  Briant 588 

Russell  V.  Notcutt 204 

Russell  V.  Smith 339,  340 

Russia  Cement  v.  LePage.  .  .  466 
Russo  V.  Orpheum    Theatre 

327,331 

Saake  v.  Lederer.  .  .531,  583, 

593, 598 

Saltus  1'.  Bedford 592 

Salvation  Army  v.  Salvation 

Army 455 

Sampson     &     IVIurdock     v. 

Seaver-Radford  Co. .  .  1 1 1 , 

609,  620 

Sanborn  v.  Dakin 610 

Sands  v.  N.  Y.  Life  Ins.  Co..  528 

Sargent  v.  McLeod 48,  50 

Sarony  v.  Ehrich 637 

Sarpy  v.  Holland.  .  .348,  587,  649 
Savage  v.  Hoffman.  .  .20,  496,  536 

Savage  v.  Kerkcr 420 

Savage  r.  Nccly 85 

Savery  v.  Ingersoll 150,  151 

Sawyer  v.  Kellogg 452,  468 

Saxe  /'.  Shubert..  .......  114,  208 

Saxlchner  v.  Eisner. 449,  450, 

456,  468 
Saxlchner    v.    Siegel-Cooper 

Co 421,456 

Sayrc  v.  Moore 561 

Scarano  v.  Leinlcin 164 

Schimkcvitz  /'.  Hiiighani ....    400 
Schlcuter  v.  Billiagheimcr.  .  .  255 


TABLE    OF   CASES 


xlix 


Page 

Schmidt  Case 182 

Schnizer  v.  Philips 300,  312 

Schlesingcr  r.  Bedford 022 

Scldotz  r.  AnuLsis 500 

Schoclkopf,  Matter  of 237 

Scliofield  i\  Wood 304 

Schonberg  v.  Cheney 81 

Schreiber  i\  Sharpless.  .  .591,  637 

Schulz  V.  Raiines 530 

Schuinachor     r.     Schwciickc 

27.  32,  550,  590,  627 

Schuyler  v.  Curtis 270 

Schwab  V.  Anderson  Steam- 
boat Co 323 

Schwab  r.  Mullcr 126 

Schwartz  v.  India  Rubber.. .   180 

Schwarz  v.  WyUe 574 

Schweitzer  v.  Hamburg,  etc., 

Gescllschaft 182 

Scott  V.  McXaughton 193 

Scott  r.  University  of  Mich- 
igan   325 

Scribncr  v.  Allen  Co 532 

Scribncr  v.  Clark 532 

Scribner  v.  Kelly 310 

Scribncr  v.  Strauss 46,  486 

Scrivcn  v.  North 459 

Sea    Gull    Specialty    Co.    v. 

Humphrey 82 

Sebeck  v.  Plattdentsche  Volk- 

fest 332 

Security  Trust  Co.  v.  Temple 

Co 233.234,235 

Selchow  I'.  Baker 409 

Selig  Polyscope  Co.  r.  Mutual 
Film  Corporation 432,  444 


Selig  Polyscope  Co.  r.  Uni- 
corn   Film   Service   Corp. 
421,  422,  425,  441,  451,  454 
Selinas  v.  Vonnont  State. .  .  .   325 

Sclwyn  r.  Waller 189 

Serrena  r.  JefTerson.  .  19,  538,  572 

Sharplcss  v.  Lawrence 421 

Shaver  v.  Holler  &  Herz 403 

Shaw's  Jewelry  Shop  v.  X.  Y. 

Herald 253 

Shaw  V.  Collins 449 

Shaw  V.  McCreary 313 

Shechan  v.  Railroad  Co 38 

Sheets  r.  Sunbry 311 

Shelley  r.  Bethel.  .260,  344, 

347, 348 

Shelby  V.  Emerson 381 

Shephcard  v.  Whitaker 283 

Shepherd  v.  Bingham 400 

Shepherd  v.  Conquest 31 ,37 

Sherman  v.  Marinolli 538 

Sherwood  v.  Crane 117 

Shook  V.  Daly 492 

Shook  I'.  Rankin 25, 492 

Shook  V.  Woods 429, 459 

Shubert  v.  Angeles 1(X) 

Shubert  v.  Coyne 10."] 

Shubert  v.  Laughlin 245 

Shubert  v.  Nixon 292,  294 

Shubert  v.  Sondheim 243 

Shubert  v.  Woodward.  .  .111,246 

Shutt  V.  Lewis 343 

Sigmon  v.  Goldstone 164 

Silver  r.  Holt 632 

Singer  Mfg.  Co.  r.  June  Mfg. 
Co 439 


1 


TABLE   OF   CASES 


Page 

Singer  Mfg.  Co.  v.  Long 457 

Simmons  v.  Mansfield 461 

Sims  V.  Marryat 557 

Simms  v.  Stanton 571 

Simplex  Automobile  v.  Kahn- 

weiler 438 

Sizer  v.  Ray 592 

Skinner  v.  Oakes 479,  480 

Slingsby  v.  Bradford  Truck 

Co 615 

Sloan  V.  Williams 67 

Smiles  v.  Belford 671 

Smith  V.  Benick 332 

Smith  V.  City  of  Raton . . .  248, 350 

Smith  V.  Clinton 65 

Smith  V.  Cumberland  Soc. .  .   332 
Smith  V.  Daily  News,  Ltd. .  591 

Smith  V.  Dodd 647 

Smiths.  Dunn 47 

Smith   V.   Herring-Hall-Mar- 
vin Safe  Co 178 

Smith  V.  Robson 113 

Smiths.  Utley 209 

Smith  r.  Wilcox 127 

Snow  V.  Laird 637 

Snow  V.  Mast 516 

Snow  V.  McCracken 314 

Snowden  v.  Noah 446 

Soane  v.  Knight 64 

Social  Register  Ass'n  v.  How- 
ard   408 

Social    Register    Assoc'n    v. 

Murphy 446 

Society  V.  Ncusbach 341 

Sociological    Research    v. 

Waldo 350,372 


Page 

Solman  v.  Arcaro 103,  175 

Solomon  v.  United  States ...     27 

Sosman  v.  Coulon 233,  234 

Southern  v.  How 469 

Southern  Ry.  v.  Myers. . .  194,  195 

Southey  v.  Sherwood 492 

Spahn  V.  Winter  Garden 118 

Spain  V.  Manhattan  Street  Co.  113 
Spaulding  v.  Rosa.  .48,  156, 

157,  159,  161 

Speake  v.  Powell 263 

Speckman  v.  Kreig 315 

Spicer  v.  Waters 499 

Spiegel  V.  Zuckerman 411 

Spires  v.  Los  Angeles 249 

Spooner  v.  Daniels 64,209 

Spooner  v.  State 398 

vSpring  V.  Edgar 313 

Springer  v.  Falk 637 

Springfield  v.  Thame 23 

S.  F.  Co.  V.  Siegel-Cooper  ....  98 
St.  Cyr  V.  Sothern  &  Marlowe  81 
St.  James  Hall  Co.  v.  London 

County  Council ,.  244 

St.  Joseph  V.  Elliot 398 

St.  Louis  V.  Fischer 365 

Stair  V.  Kane 325 

Stamp  V.  86th  St.  Am.  Co. . . .  317 
Standard  Am.   Pub.   Co.   v. 

Methodist  Concern 68 

Standard     Fashion     Co.     v. 

Siegel-Cooper  Co 96 

Standard    Sanitary    Co.    v. 

United  States 489 

Standard   Scale   &   Foundry 

Co.  V.  McDonald 630 


TABLE    OF    CASES 


ii 


Page 

Stnndine  r.  Brady 142,  162 

Standidpe  v.  Lyndc 102 

Star  Co.  V.  Press.  Pub.  Co.  .  .    103 
Star  Co.  r.   Wheeler  Syndi- 
cate    470 

Sttite  r.  Burnes 399 

State  V.  Chamberlain 393 

State  ex  rcl.  Ebert  v.  Loden 

350.  367 
State  V.  French  Opera  Ass'n  380 

State  V.  Herald 398 

State  V.  Lynch 248 

Stater.  Mason 210 

State  r.  Morris 340,  393 

Stater.  O'Hara 352,359 

State  V.  Penny 393,  39G 

Stater.  Prather 397 

State  V.  Roscnfield 346 

State  r.  Ryan 398 

State  r.  ScalTor 191,  345 

State  r.  Schonhauser,.  .  .352,  359 
State  V.  State  Journal  Co . . .  506 
State  Board  of  Agriculture  v. 

Meyers 144 

Stearns  r.  U.  S 637 

Steelier  v.  Dunston 505, 517 

Stein  V.  Bell 356,  375 

Stoppachor  v.  Karr 459 

Sterling  r.  Bock 133 

Stern  v.  Laemmle 6,  71,  72 

Stern  r.  Remick 504,  517 

Sternberg  r.  O'Brien 98 

Stevens  v.  Benning.  .51,  67, 

69,  CAi) 
Stevens  v.  Cady.  .496,  554, 

610,  645 


Page 
Stevens  r.  Chicago  Feature 

Co 114 

Stevens    v.     Gladding.  .534, 
554,  590,  610,  026,  636,  645 

Stevens  v.  McKibbin 47 

Stevens  v.  Morenous 396 

Stevens  r.  Wildy 45 

Stevens  r.  William 463 

Stevenson  v.  Fox.. 25,  569, 

573,  574,  620 

Stevenson  v.  Glasgow 303 

Stevenson  v.  Harris 573 

Stewart  v.  Cobalt  Curling. . .  303 
Stewart  v.  Reuters  Telegram    63 

Stewart  r.  Thayer 129,  398 

Stickel  r.  Riverview  Sharp- 
shooters  333,  334 

Stiff  r.  Cassell 72 

Stimpson  v.  Min.sker  Realty 

Co 250 

Stockdale  v.  Onwhyn 535 

Stokes  V.  Allen  &  White 446 

Stone  r.  Dugan 541 

Stone  r.  Long 88 

Stone  r.  Oconomowoc 250 

Storer  v.  Downey 365 

Stott  V.  Gamble 226,  351 

Stott,  Ex  parte 226 

Stover  V.  Lathrop 499 

Stowe  V.  Thomas 560,  564 

Strackosch     r.     Strackosch 

118,  156 

Strafford  r.  Stetson 123 

Straus  r.  Victor 48^^ 

Strauss  r.  Am.  Pub.  Ass'n. . .  489 
Strauss  v.  Francis 64 


lii 


TABLE    OF   CASES 


Page 
Strauss  v.  Hammerstein . .  127, 231 

Strauss  v.  Notaseme  Co 452 

Strauss  v.  Pen  Printing  Co. 

514,  617 

Stringer  v.  Frohman 447 

Strobridge  Litho.  Co.  v.  Crane    97 

Stuart  V.  Smith 197,  590 

Sturgis  V.  Coleman 366 

Sturgis  V.  Grau 366 

Sturgis  V.  Hayman 365 

Sturtevant  Co.  v.  Fireproof 

Film  Co 196 

Suburban  Press  v.  Phila.  Co. 

61,  441 

Suesskind  v.  Bingham 400 

Sugar  V.  Monroe 250 

Sutherland  v.  Wyer 147,  148 

Swan  V.  Tappan 64 

Sweet  V.  Benning 28,  550 

Sweet  V.  Evans 28 

Swezey,  In  re 479 

Swords  V.  Edgar 302 

Syers  v.  Conquest.  .342,  348,  649 

Tabart  v.  Tepper 64 

Taft  V.  Smith,  Gray  &  Co. . .  499 

Taftv.  Stevens 521 

Tams  V.  Witmark.  .  .72,  583,  596 
Tacndsticksfabrik.s  A.  Vulcan 

V.  Meyers 455,  460 

Tannenbaum  v.  Rehm 369 

Tarling  v.  Fredericks.  .  .  .340,  346 

Ta.sker  v.  Shopliord 70 

Tate?'.  Full  brook 21,  537 

Taylor  r.  Caldwell 48,  241 

Taylor  z*.  Cohn 292 


Page 

Taylor,  v.  Oilman 591,  637 

Taylor  v.  Hearst 283 

Taylor  iJ.  Nast 443 

Taylor    v.   Sawyer    Spindle 

Co 608 

Taylor  v.  Waters 292 

Teichner  v.  Pope  Mfg.  Co. . .   114 
Terry  v.  Brighton  Aquarium 

341,  398 
Terry  v.  Moss's  Empires,  Ltd.  1 19 
Te.xas  State  v.  Britton. .  .306,  332 
Theatre  De  Luxe  v.  Gledhill 

351,  361,  371 

The  King  v.  Dimock 352 

The  Mikado  Case 52,  508 

The  Sarah 140 

Thedford    Medicine    Co.    v. 

Curry 469 

Thill  tJ.Hoyt 160 

Thomas  v.  Abrahamson 420 

Thomas  v.  Bayson 316 

Thomas  v.  Beaver  Dam  Mfg. 

Co 157 

Thomas  v.  Bradbury 63,  203 

Thomas  v.  Gatti 263 

Thomas  v.  Lennon 497 

Thomas  v.  Springer.  168,  187,  335 

Thomas  v.  Williams 298 

Thoinbleson  v.  Black 554 

Thomp.son  v.  Hubbard.  .511,  513 

Thompson  v.  Lowell 321,  332 

Thomp.son  v.  Shackcll 64 

Thompson  v.  Tillford 275 

Thorne  v.  French 77,  80 

Thornton  v.  Agricultural  So- 
ciety     332 


TABLE   OF   CASES 


liii 


Pagk 

ThrinR  r.  Lucas 170, 220 

Tivoli,  Manchester,  v.  Colley     90 

Tiihacco  Co.  r.  Hynes 401 

Todd    Protectogniph   Co.   r. 

Hirscliberg 213 

Todd  r.  Koone 150,  1.5,3 

Toiisoii  r.  Collins 492 

Tonialin  r.  I'carson 180 

Tompkins    r.    Ilallock.  .493, 

494,  504,  580 

Town  of  Davis  v.  Davis 255 

Trade  .\uxiliary  Co.  r.  Mid- 
dlcsl)()rou«hT.  P.Ass'n...     37 

Trailing  r.  Messenger 348 

Tree  v.  Bowkett.  .30,  45,  71, 

224,  22S,  557 
Trengrou.se  v.  "Sol"  Syndi- 
cate    502 

Triangle  Film  Corp.  r.  Art- 
craft  202 

Tribune   Co.    of   Chicago   r. 

A.ssociated  Pre.ss.  .23,  540,  010 
Triggs    r.    Sun    Printing    & 

Publishers  A.ss'n 05 

Trow  Directory  r.  Boyd.  .  .  .   590 
Troy  City  Directory  v.  Cur- 
tin 593,  594,  030 

Trustees  r.  Lewis 249,  350 

Tuck  &,  Sons  r.  Priester 072 

Tully  r.  Triangle.. 531,  5S0,  005 
Turgeon  v.  Connecticut  Co. 

301,  300,  332 

Turner  v.  Robin.son 500 

Tuttle  r.  La  Dow 07 

Twiggar  r.  Ho.senberg 390 

Tyler  c.  Tyler 40 


V.KGE 

United    Drug    Co.    r.    Rec- 

tanus  Co 453,  455 

United  (3il  Co.  r.  Grey ICA 

United  States  v.  Edgar 192 

United  States  v.  Gay 192 

United  States  r.  Greathouse  531 
United  States  r.  Motion  Pic- 
ture Patents  Co 201,  488 

United  States  r.  Taylor 280 

United  States  v.  Thompson . .    192 

United  States  v.  White 030 

United     Vaudeville    Co.    v. 

Zeller 390 

Universal  Film  Mfg.  Co.  v. 

Bell 355,  350,  373 

Universal  Film  Mfg.  Co.  v. 
Copperman .  .  485, 497, 507, 

555,  017,  022 
Universal  Talking  ^Lachine 

V.  English 97 

Unwin  r.  Clarke 20;i 

Vail  ('.  Jersey  Co 143 

\'alenti  v.  N.  Y.  Theatre  Co.  245 

\'alentine  r.  Richardt 010 

Valentine  Co.  v.  Sloan.  .  .308,  309 

Van  Antwerp  c.  Linton 30() 

Van  Cleef  v.  Chicago 319 

\'anderbilt  r.  Mitchell 273 

Van  Doren  r.  Baity 40 

\'an      Xordeii        v.      Server 

Com 355 

Vassar  College  r.  Loose  Wiles 

272,  278 

jVent  r.  Osgood 175 

Vernon  v.  Shubert 507,  572 


liv 


TABLE    OF   CASES 


Page 

Vernon  Abstr.  Co.  v.  Wag- 
goner Title  Co 505 

Victoria  Pier  Syndicate  v. 
Reeve 367 

Village  of  Des  Plaines  v. 
Poyer 252,  254 

Violettet?.  Rice 140 

Virginia  Hot  Springs  v.  Hege- 
man 452 

Vitagraph  v.  Swaab 224,  236 

Vitascope  Co.  v.  U.  S.  Phono- 
graph Co 648 

Vogel  V.  St.  Louis  Museum 

196,  210 

Von  Thadorovich  v.  Franz 
Joseph  Beneficial  Ass'n.  .  .  273 

Vredenburg  v.  Behan 315 

Wade  V.  Hefner 162 

Wade  V.  Rob't  Arthur  Thea- 
tres Co 117,  144 

Wade  j;.  Waldon 204 

Wagner  v.  Conried 506 

Wagner  v.  Wilson 586 

Wagstaff  V.  Edison  Bell 253 

Wahle-Phillips  Co.  v.  Fitz- 
gerald    233 

Wahle-Pliillips  v.  Fifty- 
Ninth  St.  &  Madison  Ave. 

Co 234 

Waite  V.  Aborn 189 

Waite  !•.  O'Xcil 610 

Wakeman  v.  Wheeler.  .  .  .79,  150 

Waldo  t).  Seel ig 366,  380 

Wales?'.  Baily 125 

Walker,  In  re 363 


Page 

Walker  v.  Brewster 253 

Walker  v.  Crown 202 

Walker  v.  Fuhrman 358 

Walker  v.  Globe  Newspaper 

Co 496 

Walker  v.  Tribune 63,  64 

Wall  t;.  Bailey 120 

Wallt>.  Gordon 506 

Wall  V.  Taylor 348,  587 

Wallenstein  v.  Herbert 52 

Wallick  V.  Society 345 

Walsh  V.  Hyde  &  Behman.  .  .  331 
Walter  Baker  Co.  v.  Dela- 

penha 411 

Walter  v.  Emmott.  .404, 448,  455 

Walter  v.  Howe 28 

Walter  v.  Steinkopff 23 

Walton  V.  Godwin 160 

Walton  V.  Mather 118 

Wamser  v.  Browning-King.  .   336 
Wandt  V.  Hearst's  Chicago-  340 

American 283 

Ward  V.  Beeton 72 

Ward  Lock  &  Co.  v.  Long 

28,  33,  76 
Warheit  t'.  The  Day  Pub.  Co.    71 

Warne  v.  Routlcdge 7 

Warner  v.  Brighton  Aquarium  340 

Warner  v.  Roehr 469 

Warner  v.  The  Rector  and 

Trustees 139 

Wash.  Luna  Park  v.  Good- 

ricli 323 

Waterman  v.  McKenzie 582 

jWaterman  v.  Shipman.  .69, 

74,  406,  633,  646 


TABLE    OF   CASES 


Iv 


Page 

Waters  r.  Leech 369 

Watkins  v.  Thurraan 114 

Watson  V.  Cowdrey 499 

Watson  V.  Russell 122, 1G5 

Watts  V.  Fraser 209 

Watts  V.  Unione 528,  529 

Watts  V.  Van  Ness 391 

Waycross  v.  Sossman. . .  .234,  235 
Weatherby  &  Sons  v.  Intern'l 

Horse  Agency 591 

Weaver  v.  Klaw 115,  208 

Weber  r.  Freed 379,  389 

Weber  v.  Mapes 85 

Weber-Stair t>.  Fisher.  ..  .329,  331 
Webb  r.  New  Haven  Theatre  234 

Webb  V.  Powers 594,  621 

Webber  v.  Chicago 340 

Webster  v.  Daly 568 

Weil  V.  Xevin 209 

Weiner  v.  Scherer 305,  318 

Weiss  V.  Skinner 293,  329 

Weistblatt  v.  Bingham.  .337, 

339,  348,  392 

Welcome  v.  Thompson 409 

Weld  V.  Fruhling 529 

Weldon  v.  Dicks.  .  .403,  521,  532 

Wells  r.Haflf 157 

Wells  V.  Minn.  Baseball 299 

Wells  Am.  Co.  v.  Means 331 

Welty  V.  Jacobs 247 

Wendell  v.  Baxter 302 

Wendelb.  Conduit Mach. Co.  281 

Wentworth  v.  Riggs 336 

Wentworth  r.  Whitney 158 

Werckmeister  v.  Am.  Litlio- 

graphic   Co 486,  505,  513 


Page 
Werckmeister    r.    Springer 

Lith.  Co .532 

Werner  r.  Encyclopedia.  .  .  .    610 
West  Publ.  Co.  V.  Lawyers' 

Co-op .590 

West     Publishing     Co.     v. 

Thompson 496,  .>13,  609 

Westermann    v.    Despatch 

612,  638 

Westwater  v.  Rector 146 

Wheaton  v.  Peters.  .495, 496, 

506,  511 

Wheeler  v.  Cobbey 636,  638 

Wlieeler  r.  Wheeler 40 

Wheeler  v.  Woods 144 

Wheeler  Syndicate  v.  Star  Co.  474 

Whistler  v.  Ruskin 64 

White  V.  Constable  &  Co ... .     78 

White  V.  Geroch 493 

White  V.  Henderson 125 

White  V.  Osborn 40 

White  V.  Shapiro 541 

Whiter.  White 281 

White  Dental  Co.  r.  Sibley.  .  574 
White-Smith  v.  Apollo.  .  .550,  560 

White-Smith  v.  Goff 548 

Whittaker  v.  Howe 102 

Whitten,  ^L'\tterof .350,  368 

Whit  well,  E\  parte 252,  344 

Whit  wood  r.  Hardman 92,  99 

Wichita  Falls  Co.  r.  Adams 

333,  334 

Widmer  r.  Thompson 6,  74 

Wigan  r.  Strange 21 

•  Wilder  ;•.  Kent 554,  645 

Willard  i\  Tayloe 109 


Ivi 


TABLE   OF   CASES 


Page 

Williams  v.  Butler 157 

Williams  v.  Davenport 203 

Williams  v.  Feldman 11 

Williams  v.  Mineral  C.  P.  A. 

312,  325 

Williams  v.  Moray 314 

Williams  v.  Wright 348,  391 

Willis  V.  Lowery 163 

Willis  t>.  Tibbals 73 

Winter  German  Opera,  Ltd., 

In  re 263 

Wirth  V.  Calhoun 129,  398 

Witkop    &    Holmes    Co.    v. 

Boyce 107 

Witmark  v.  Peters 103 

Witmark  v.  Standard  Music 

Roll  Co 545 

Wm.  Rogers  Co.  v.  Rogers. . .  98 
Wolf  Cigar  Stores  v.  Kramer  140 
Wolfe  0.  Howes..  48,  50,  133, 

156,  165 

Wood  V.  Butterworth 61 

Wood  V.  Cunard  Steamship 

Co 499 

Wood  V.  Leadbitter 292 

Wood  /'.  Miller 143 

Wood  V.  Saiidow 203 

Woodbridge  v.  Marks   314 

Woodman  v.  Lydiard-Peter- 

soii  Co         611 

WoodrutT  77.  Painter 336 

Woods  V.  Brodcr 251 

Woods  Prod.  Co.  t.  Chicago 

261,  396 

Woodside  v.  Tonopah Ill , 

Woolcolt  D.  Shubert 295 


Page 
Wooster  v.  Crane.. 67,  531, 

578,  582,  614,  618 
Worden  v.  New  Bedford ....  249 
World  Film  Corporation  v. 
Foy  and  N.  Y.  Motion  Pic- 
ture Corporation 110 

Worthen  v.  Love 316 

Worthington  v.  Batty 579 

Wright?;.  Eisle 505 

Wright  V.  McCampbell 50 

Wright  27.  Tullis 24,  616 

Wyatt  V.  Burnard 26 

Wyatt  V.  Hall's  Port  Studio. .   278 
Wyatt  V.  McCreery .  275,  278,  281 

Wyatt  V.  Phipps 125 

Wyatt    V.    Rosherville    Gar- 
dens   313 

Wyatt  V.  Wanamaker.  .278,  281 
W.  W.  V.  Co.  y.  Black 292 

Yale  &  Towne  Mfg.  Co.  v. 

Adler 475 

Yearaans  v.  Tannehill 76 

Yerrington  v.  Greene 50,  69 

Yorkvillo  v.  Bingham 361 

Young  V.  Am.  Opera  Co.  .  157, 159 

Younger  /-.  Judah 299,  328 

Yuengling  v.  Schile 526,  527 

Zamco  V.  Hammerstein 161 

Zenatello  v.  Hammerstein  128,  162 

Zcrralin  o.  Dltson 248 

Zicgfeld  V.  Norvvorth 97,  112 

Ziegfeld  Follies,  Inc.,  v  Gus 

Hill 445,  454 

Zuccaro,  Kx  parte 397,  398 


THE   LAW   OF   MOTION   PICTURES 

CHAPTER  I 

THE   AUTHOR 

Rights  in  his  Literary  Works 

Sec.  1.  Where  the  motion  picture  is  basoiluponaclramaticcomposition. 

2.  Where  tlie  motion  picture  is  l)ased  upon  a  novel  or  liistorical 

work. 

3.  Where  the  motion  picture  is  based  upon  a  short  story,  sketch, 

poem,  lecture,  sermon  or  other  kindred  work. 

4.  Where  the  motion  i)icture  is  based  upon  an  original  scenario, 

that  is  one  not  based  upon  any  other  work. 

5.  Where  the  motion  i)icture  is  based  upon  a  news  item. 

6.  Where  the  motion  picture  Ls  based  upon  a  work  in  the  public 

domain. 

7.  Wliere  the  motion  ])icture  is  produced  in  serial  form. 

8.  Where  the  relationship  is  that  of  employer  and  employe. 

9.  Where  the  motion  picture  material  has  been  N\Tittcn  by  more 

than  one  person. 

10.  Nature  of  the  contract  of  co-authorship. 

11.  Where  music  has  been  written  specially  to  accompany  the 

cxhil)ition  of  the  motion  i)icture. 

12.  Where  the  motion  picture  producer  has  not  followed  the  text 

of  the  work  upon  which  the  motion  picture  is  based. 
1.3.  Criticism  of  the  work. 

Section  1. — Where  the  motion  picture  is  based  upon  a 
dramatic  composition. 

We  shall  consider  first  the  various  rights  and  liabilities 
that  are  croatod  when  the  author  or  pro])riotor  of  a  })lay 
grants  producing  rights  with  respect  to  the  same. 

1 


THE    LAW   OF  MOTION   PICTURES 


Where  the  author  or  proprietor  of  a  play  grants  to  a 
play  producer  the  exclusive  license  for  the  dramatic  pro- 
duction of  that  play  by  living  actors  upon  the  stage  he 
may  not  thereafter  grant  to  another  the  right  to  produce 
that  play  in  motion  picture  form.  This  seems  to  be  the 
accepted  rule  even  where,  at  the  time  of  the  granting  of 
the  play  rights,  neither  of  the  parties  contemplated  the 
production  of  the  play  by  means  of  motion  pictures.^ 

The  reason  for  this  rule  is  founded  on  the  principle  that 
the  prior  exclusive  grant  conveys  a  valuable  property 
right.  Inasmuch  as  a  motion  picture  reproduction  of 
such  play  is  a  dramatic  work,^  the  exhibition  of  such 
motion  picture  constitutes  an  invasion  of  the  exclusive 
dramatic  rights  originally  granted  to  the  producer  of  the 
play  upon  the  stage  with  living  actors.^ 

Were  this  not  so,  the  anomalous  situation  would  arise 


^Frohman  v.  Fitch  (1914),  164 
A.  D.  (N.  Y.)  231;  149  N.  Y. 
Supp.  633,  in  which  Clyde  Fitch 
granted  to  Frohman  in  1900  the 
exclusive  producing  rights  to 
"Captain  Jinks  of  the  Horse 
Marines."  Nothing  was  then 
contemplated  or  mentioned  by 
the  parties  as  to  motion  pictures. 
Thereafter,  on  the  death  of  Fitch, 
his  father  granted  to  the  American 
Play  Company,  the  motion  pic- 
ture rights.  It  was  held  that 
Frohman  was  entitled  to  an  in- 
junction restraining  the  moving 
picture  production.  See  also: 
Klein  V.  Bcnrh  (1910),  232  Fed. 


,(D.  C.)  240,  opinionby  Mayer,  J.; 
aff'd  239  Fed.  (C.  C.  A.)  108, 
opinion  by  Hand,  J.;  Harper  Bros. 
V.  Klaw  (1916),  232  Fed.  (D.  C.) 
609. 

^Knlcm  V.  Harper  (1911),  222 
U.  S.  55;  32  Sup.  Ct.  20. 

3  Frohman  v.  Fitch  (1914),  164 
A.  D.  (N.  Y.)  231;  149  N.  Y. 
Supp.  633;  Photo  Drama  Motion 
Pict.  Co.  V.  Social  Uplift  Film 
Corp.  (1915),  220  Fed.  (C.  C.  A.) 
448;  Klein  v.  Beach  (1916),  232 
Fed.  (D.  C.)  240;  aff'd  239  Fed. 
(C.  C.  A.)  108;  Harper  Bros.  v. 
Kkiw  (1916),  232  Fed.  (D.  C.) 
609. 


WHERE    BASED    UPON    A    DRAMATIC    rOMPOSITION 


3 


whoroin  the  author  could  grant  the  exclusive  dramatic 
riglits  to  j)roduce  the  play  upon  the  stage  and  simul- 
taneously with  its  production  on  the  stage,  could  grant  a 
license  to  reproduce  the  play  in  motion  pictures  to  third 
parties,  the  exhibition  of  which  would  seriously  interfere 
with,  or  even  destroy,  the  production  upon  the  stage  with 
living  actors. 

This  situation  was  imminent  in   the  recent   case  of 
Harper  Brolhers  &  ano.  v.  Marc  Klaw  &  ano^     In  that 


♦  Harper  Bros.  v.  Klaw  (1916), 
232  Fed.  (D.  C.)  G09,  Hough,  J.: 
"  If  by  the  jiRreement  of  1S99  the 
defeiuhint  had  been  granted  the 
exchisive  right  of  dramatizing 
'Ben  Hur'  or  producing  any  play 
or  plaj's  tiiat  might  be  made  out 
of  'lien  Ilur,'  there  would  be 
no  doubt  at  all  as  to  their  right  to 
make  a  '  mo\'ie  plaj' '  as  well  a.s  the 
kind  of  play  that  has  heretofore 
been  produced.  .  .  .  But  the 
grant  made  l)y  that  agreement 
wa.s  far  more  limited.  The  right 
conferred  wa.s  to  produce  one 
version  only,  and  that  in  a  par- 
ticular manner,  and  in  places 
limited  in  cities  of  a  certain  size. 
The  contract  prohibits  any  change 
in  the  manner  of  performance  or 
text,  and  contains  provisions  as 
to  royalties  and  their  computation 
confes.sedly  incapable  of  applica- 
tion to  any  method  of  producing 
photo-plays  in  commercial  use  or 


known  to  witnesses  or  coun.sel. 
It  is  unnecessary  to  expand  this 
thought,  the  whole  arrangement 
made  between  the  parties  in  1899 
is  not  only  inconsistent  with  but 
repugnant  to  the  thought  of  mak- 
ing 'movies'  out  of  'Ben  Hur.' 

"This  differentiates  the  ca.se  at 
bar  from  Frohman  v.  Filch 
(1914),  IW  A.  D.  (X.  Y.)  231, 
with  which  I  fully  concur,  but 
these  defendants  never  got  so 
ample  a  grant  as  did  Mr.  Froh- 
man. 

"It  follows,  since  the  copyright 
covers  a  photo-plaj'  and  Klaw  &. 
Erlanger  got  no  licen.se  to  make 
or  produce  one,  they  would  in- 
fringe if  their  threat  were  carried 
out — therefore  they  must  be  en- 
joined. 

"Plaintiffs  assert  and  almost 
a.ssumo  that  since  defendants 
cannot  make  a  'moN-ie'  out  of 
'Ben  Hur'  and   such  right  must 


THE    LAW   OF   MOTION   PICTURES 


case  Klaw  &  Erlanger  had  acquired  from  Harper  Bros. 
the  exclusive  right  to  produce  a  dramatization  of  the 
novel  ''Ben  Hur."  Klaw  &  Erlanger  claimed  that  under 
the  contract  they  had  the  right  to  reproduce  the  drama- 
tization in  the  form  of  motion  pictures.  Harper  Brothers 
contended  that  they  had  granted  Klaw  &  Erlanger  a 
license  solely  to  produce  the  play  upon  the  stage  with 
exist  somewhere,  it  is  in  them, —      the  copyright    estate  to  the  delri- 


as  being  an  unconveycd  portion 
of  the  copjTight  estate  where- 
from  was  carved  defendants' 
limited  license. 

"In  strictness  of  law,  I  think 
this  is  true,  hut  it  does  not  always 
follow  that  because  one  oions  a 
certain  thing  he  may  xise  it  to  the 
detriment  of  another  especially  if 
the  owner  is  under  contractual 
obligations  to  such  other. 

"The  'movie'  rights  to  'Ben 
Hur'  undoubtedly  existed  in 
1899,  but  in  nubibus  or  (what  is 
frc(iucntly  the  same  thing)  in 
contemplation  of  law  only.  As  a 
matter  of  fact  they  are  an  accre- 
tion or  unearned  increment  con- 
ferred of  late  years  upon  the  copy- 
right owners  by  the  ingcMiuity  of 
many  inventors  and  mechani- 
cians. 

"It  is  my  opinion  tlicrc  is  im- 
plied a  7icgalivc  corcnanl  on  the 
part  of  the  plninliffs  {the  grantors 
of  dcfendnnla'  restricted  license) 
not  to  use  the  ungrantcd  portion  of 


ment,  if  not  destruction  of  the 
licensee's  estate. 

"Admittedly  if  Harper  Bros, 
(or  Klaw  &  Erlanger  for  the  mat- 
ter of  that)  permitted  photo-plays 
of  Ben  Hur  to  infest  the  country, 
the  market  for  the  spoken  play 
would  be  greatly  impaired  if  not 
destroyed. 

"This  being  the  fact,  the  law  is 
analogous  to  that  which  implies 
from  a  covenant  to  make  a  cer- 
tain use  of  property,  a  covenant 
negative  against  doing  anything 
else  with  it  (High  on  Injunction, 
4th  Ed.,  Section  1151a,  and  cases 
cited). 

"The  result  is  that  plaintiffs 
may  take  the  injunction  jK-ayed 
for  against  the  defendants,  and 
the  defendants  may  have  the  same 
relief  against  plaintilTs.  The 
meaning  of  such  double  injunction 
is  that  as  long  as  the  contract  of  1899 
exists,  neither  parly  thereto  can 
produce  n  photo-play  of  Hen  Hur 
except  by  bargain  with  the  other." 


WHERE   BASED    ITON    A    DRAMATIC    COMl'OSl TION  O 

living  actors,  and  sought  to  restrain  tiicm.  The  latter 
countcrclaiiiu'd  that  even  assuming  they  had  nothing 
but  tlie  riglil  of  stage  i)ioducti()n,  nevertheless  they  were 
entitled  to  enjoin  the  plaintiff  from  making  a  motion  pic- 
ture version  of  the  i)lay  during  the  term  of  the  license. 

While  the  court  found  that  the  defendants  Klaw  & 
Erlanger  had  been  merely  granted  a  license  to  produce 
the  play  upon  the  stage  with  living  actors  and  restrained 
them  from  making  a  motion  picture  version  thereof,  yet 
it  granted  judgment  on  the  counterclaim,  enjoining  and 
restraining  the  plaintiffs,  Harper  Brothers,  from  making 
a  motion  picture  reproduction  of  the  play  during  the  hfe 
of  the  license. 

However,  the  original  grant  to  produce  the  play  upon 
the  stage  with  living  actors,  does  not  divest  the  author 
of  his  right  to  produce  the  play  in  motion  pictures.  His 
right  to  produce  the  play  in  motion  pictures  is  merely 
suspended  during  the  term  of  the  license  granted  by  him 
to  the  producer  of  the  play  upon  the  stage. 

^Mien  the  agreement  granting  the  exclusive  license  is 
silent  on  the  question  as  to  whether  the  play  is  to  be  pro 
duced  with  living  persons  upon  the  stage  or  fails  to  men- 
tion any  other  specific  method  of  production, — in  other 
words,  where  the  author  grants  "all  dramatization  rights," 
the  licensee  secures  not  only  the  exclusive  right  to  pro- 
duce the  play  upon  the  stage  with  living  actors,  but  he 
secures  as  well  the  exclusive  right  to  make  motion  picture 
reproductions  of  such  play.^ 

''Photo  Drama  Motion  Picture  448,  Lacoml)c,  J.:  "Oir"  Kauf- 
Co.  V.  Social  Uplift  Film  Corpora-  man  wrote  a  novel  entitled  '  Tlie 
tioti  (191')),  220  Fcil.  (C.  C.  A.)      House  of  Bondage'    He  assiRncd 


THE    LAW   OF   MOTION    PICTURES 


The  licensee  secures  the  sole  right  to  produce  or  repro- 
duce the  play  and  with  it  the  accompanying  right  to 
restrain  invasions  of  his  Ucense,^  only  when  his  grant  is 
exclusive.  Where  no  mention  is  made  in  the  agreement 
of  the  exclusiveness  of  the  grant,  the  court  will  assume 
that  the  grant  is  not  exclusive,  and  the  author  may  grant 
the  same  rights,  for  the  same  period,  to  third  parties/ 

question  of  fact  might  depend 
on  whether  the  performance  was 
substantially  one  appealing  to  the 


his  right  to  copyright  the  same 
to  MofTatt-Yard  &  Co.  Moffatt- 
Yard  &  Co.  duly  secured  copy- 
right. That  gave  them  exclusive 
rights  to  publish  and  sell  the 
novel;  also  to  make  dramatiza- 
tions of  it,  whether  in  the  usual 
form  for  acting  on  the  stage  of  a 
theatre  or  in  the  more  recent 
form  of  a  motion  picture  play. 
Moffatt-Yard  &  Co.  assigned  «/^ 
dramalization  rights  to  Kaufman. 
He  then  had  exclusive  right  to  make 
dramatizations  of  either  kind." 

See  generally  in  this  connection : 
London  Theatre  of  Varieties  v. 
Evans  (Eng.)  (1914),  30  T.  L.  R. 
258.  An  actor  agreed  that  he 
would  not  give  or  permit  the  giv- 
ing of  any  colorable  imitation, 
representation  or  version  of  his 
performance  within  a  specified 
area.  Held  that  it  was  a  cjuestion 
of  fact  wlu'thor  a  motion  picture 
reproduction  f)f  the  act  was  in 
fact  a  colorable  imitation,  repre- 
sentation or  version  of  the  same; 
that    the    determination    of    the 


eye  which  could  be  reproduced  or 
to  the  ear  which  could  not  be  re- 
produced. The  court  also  stated 
that  a  reproduction  of  an  operatic 
performance  would  not  as  a  rule 
be  a  representation  of  the  opera, 
the  singing  of  which  was  the 
primary  feature,  while  in  the 
case  of  a  music  hall  sketch  it 
could  be  such  a  representation  as 
to  amount  to  a  representation 
thereof. 

^Widmer  v.  Thompson  (1878), 
56  How.  Pr.  (N.  Y.)  91;  Barnett 
V.  Q.  &  C.  Co.  (1915),  226  Fed. 
(C.  C.  A.)  935;  Stern  v.  Lnemmk 
(1911),  74  Misc.  (N.  Y.)  262;  133 
N.  Y.  Supp.  1082. 

'  Hart  V.  Cort  (1913),  144  N.  Y. 
Supp.  627;  83  Misc.  (N.  Y.)  44: 
A  contract  was  made  granting  a 
license  to  the  defendant  to  jkm'- 
form  "LaTosca."  The  contract 
contained  terms  of  limitation 
respecting  time  and  place  but  no 


WHERE    BASED    UPON'    A    DUAMATIC    COMPOSITION  7 

Whore,  instead  of  a  license  for  a  limited  period,  there 
is  an  absolute  sale,  by  the  author  or  proprietor  of  the 
rij^iit  to  produce  the  play  upcjn  the  stage,  the  right  of  tlu- 
author  or  ])ro])rietor  to  rejiroduee  the  same  play  in  mo- 
tion pictures  is  forcN'er  suspended.  Hence,  in  such  a  case, 
neither  licensor  nor  hcensee  would  have  the  right  to  make 
a  motion  picture  reproduction  of  the  play,  nor  grant  such 
a  right  to  third  parties,  except  by  mutual  consent, — 
unless  the  play  comes  into  the  pu))lic  domain. 

In  each  instance  where  the  question  arises  as  to  whether 
the  grant  is  one  of  all  the  dramatic  rights  or  merely  of 
the  motion  picture  rights  or  the  right  to  produce  the 
play  upon  the  stage  with  living  actors,  it  is  a  question  of 
law  for  the  court  as  to  whether  or  not,  from  the  context 
of  the  contract,  the  parties  intended  to  convey  an  un- 
limited or  limited  grant. 

It  has  been  held  in  Klein  v.  Bcacli  that  the  phrase 
"presentation  on  the  stage"  construed  in  connection  with 
other  provisions  respecting  production  of  a  play  by  stock 
companies,  stage  scenerj'',  &c.,  had  reference  only  to  the 
production  of  the  spoken  play  in  theatres,  and  that  as 

statement   that   tlie   license  was  publisher  for  the  publication  of 

exclusive.     It  was  held  that  un-  her  work.     Before  the  sale  of  all 

less    the    term    "exclusive"    or  the  copies  of  the  edition  is-sued 

"sole"  or  other  words  expressing  by  the  first  publisher  she  entered 

an  intention  to  grant  an  exclusive  into  a  new  contract  with  another 

license  were  used,  there  was  no  ])ul)lisher  for  a  second  edition  of 

exclusive  grant.  the  same  work.    Held,  that  since 

Warne     v.     lioiitlalgc     (Eng.)  .she  had  granted  no  cxchisicc  right 

(1874),  43  L.  J.  Ch.  GOt;  L.  U.  IS  to  the  first  publisher  she  was  at 

Eq.4n7;:«)L.T.S.-)7;22W.  IJ.7r)0:  lil)erty    to    contract    with    other 

An  authoress  contracted  with  one  parties. 


8 


THE    LAW   OF  MOTION   PICTURES 


at  the  time  the  contract  was  made,  the  production  of 
motion  picture  plays  was  a  well-known  business,  it  was 
not  intended  that  the  contract  should  carry  the  exclusive 
right  to  dramatize  for  that  purpose,  but  that  such  right 
remained  in  the  author.^ 

In  Harper  &  Bro.  v.  Klaw,  the  preamble  of  the  contract 
recited  that  the  defendants  were  to  obtain  "the  exclusive 
right  of  producing  such  dramatic  version  on  the  stage" 
and  the  body  of  the  contract  contained  a  provision  that 
Klaw  &  Erlanger  were  granted  the  sole  right  of  ''pro- 
ducing on  the  stage"  or  "perfonning"  the  "dramatic 
version"  thereof.    It  was  there  held  that  that  portion  of 


^  Klein  v.  Beach  (1917),  239 
Fed.  (C.  C.  A.)  108,  Hand,  J.: 
"The  actual  words  of  grant  are 
these:  'tlie  sole  and  exclusive  right 
to  dramatize  the  said  book  for 
presenfaUon  on  the  stnge.'  The 
plaintiff  insists  in  view  of  Kaleni 
Co.  V.  Harper,  222  U.  S.  55,  32 
Sup.  Ct.  20,  and  Frohman  v. 
Fitch,  164  App.  Div.  232;  149  x\. 
Y.  'kipp.  633,  that  dramatic 
rights  include  motion  picture 
rights.  If  used  alone  that  is 
doubtless  true,  especially  if  the 
contract  antedate  the  commercial 
use  of  motion  pictures.  Yet 
Judge  Hough  in  Harper  v.  Klaic, 
232  Fed.  (D.  C.)  609,  held  on  a 
contract  dated  in  lcS99  that  the 
words  'the  exclimire  right  of  pro- 
dvcing  such  dramatic  rrrsiori  on  the 
stage,'  did  not  give  to  the  grantee 


any  motion  picture  rights,  al- 
though it  is  true,  he  also  held 
that  such  a  grant  raised  by  impli- 
cation a  negative  covenant  against 
destroying  the  effect  of  such  a 
grant  by  motion  pictures.  That 
decision  would  avail  the  plaintiff 
here,  if  the  date  of  this  contract 
had  been  so  early;  it  will  hardly 
serve  at  the  end  of  November, 
1911,  long  after  motion  pictures 
had  become  common  and  the 
distinction  between  them  and 
the  stage  proper  had  for  all  pur- 
poses become  well  fixed.  There 
is  no  basis  for  an  implied  nega- 
tive covenant,  because  tlie  situa- 
tion has  not  changed  since  the 
contract  was  made  so  as  to 
create  an  unexpected  situation 
if  tlie  terms  be  strictly  inter- 
preted." 


WHERE    nASF.I)    rrOX    A    DltAMATIC    COMl'OSITION'  <) 

the  preamble  and  body  of  the  contract,  taken  in  conjunc- 
tion with  tlie  fact  that  at  that  time  (1899)  the  motion 
picture  art  was  m  its  infancy,  did  not  pass  the  motion- 
picture  rights  to  the  Ucensee.® 

In  Photo  Drama  Picture  Co.  v.  Social  Uplift  Film  Co., 
comphxinants  claimed  that  by  securing  all  dramatization 
rights,  complainants'  assignor  possessed  the  exclusive 
motion  picture  rights.  This  construction  of  the  grant 
was  admitted  by  the  answer,"'  and  was  acquiesced  in  l)y 
th(»  courts ' 

The  situation  may  arise  where  the  author  or  proprietor 
of  a  play  before  the  play  has  been  produced  upon  the 
stage,  grants  an  exclusive  license  to  reproduce  the  play 
in  motion  pictures,  and  subsequently  thereto  attempts  to 
produce  the  play  liimself  or  grants  to  a  third  party  the 
right  to  produce  the  play  upon  the  boards.  This  may  be 
the  case  with  plays,  which  after  being  reproduced  in 
motion  pictures,  become  well  known  to  the  public. 

Query:  Has  the  motion  picture  producer  the  right  to 
enjoin  any  stage  production  of  such  play  upon  the  theory 
followed  by  the  courts  in  FroJiman  v.  FitcJi- 

While  the  question  has  not  yet  arisen  before  the  courts, 
there  seems  to  be  good  reason  for  believing  that  the  rule 
laid  down  in  the  Frohman  case  will  be  followed. 

■'  Harper   A   Bros.   v.  Klaw  &  No.    102,    Januarj-,     1915,    also 

/WflMf/cr  (1910),  232  Fed.  (D.  C.)  known    under     the    designation 

009.    SoooxcorptofJiids^oIIough'.s  Record  No.  oloO,  ir.   S.   Circuit 

opinion  on  pages  o  antl  4.  Court  of  Appeals — Southern  Dis- 

'"  Photo  Drama  Picture  Co.  v.  trict  of  New  York. 

Social    Uplift   Film   Co.,   United  ''Photo  Drama  Picture  Co.  v. 

States  Circuit  Court  of  Appeals  Social    Uplift   Film   Co.    (1915), 

for  the  Second  Circuit,  Record  220  Fetl.  (C  C.  A.)  448. 


10  THE    LAW    OF   MOTION   PICTURES 

The  decision  in  that  case  is  based  upon  the  theorj^  of 
unfair  competition.  Where  all  the  elements  of  unfair 
competition  exist,  it  would  be  only  reasonable  to  assume 
that  it  makes  no  difference  which  is  first  granted  and 
produced — the  motion  picture  or  the  play.  Since  they 
are  both  in  the  same  class,  the  production  of  each  being 
a  dramatic  performance,  the  courts  must  protect  him  who 
was  first  given  the  grant  and  who  first  produced  the  work. 
Because  I  own  a  play  and  sell  you  the  motion  picture 
rights,  I  have  no  right  thereafter  to  exploit  my  play  to 
the  detriment  of  your  rights. 

To  avoid  that  situation,  the  author  or  proprietor  of 
the  play  may  provide  in  liis  contract  with  the  motion 
picture  producer  that  he  expressly  reserves  to  himseK  or 
his  assigns,  during  the  period  of  the  motion  picture  grant, 
the  right  to  perform  the  play  with  Uving  actors  upon  the 
stage. 

Then  again,  we  may  be  confronted  with  a  case  wherein 
the  proprietor  of  a  successful  and  well-known  play,  after 
its  performance  on  the  stage  for  several  years,  finally 
grants  an  exclusive  Ucense  for  its  reproduction  in  motion 
pictures.  May  he  then,  during  the  term  of  such  grant, 
continue  to  perform  his  play  with  hving  actors  upon  the 
stage? 

Here,  a  contrary  situation  is  disclosed.  The  proprietor 
of  the  play  was  the  fu-st  user  of  the  property — the  pro- 
prietor of  the  motion  picture  rights,  the  second  user. 
The  latter  knows  of  the  prior  user.  He  makes  his  bargain 
with  that  in  mind.  If  he  wishes  to  have  the  exploitation 
of  the  play  upon  the  stage  suspended  (hiring  the  period 
of  his  license,  he  should  Jiot  only  bargain  for  the  motion 


WHERE  HASED  UPON  A  NOVEL  OU  HISTORICAL  WOUK       1  1 

picturo  rit:;hts,  l)ut  also  obtain  a  covenant  from  tho  licensor, 
i:i  which  tlie  latter  agrees  to  refrain  from  continuing  the 
stage  performances  during  the  period  of  his  license. 

Section  2.-  Where  the  motion  picture  is  based  upon  a 
novel  or  historical  work. 

With  the  coming  in  of  the  so-called  "feature  films" 
film  producers  soon  found  that  then-  chief  source  of 
material  for  such  films,  to  wit:  dramatic  compositions, 
was  rapidly  becoming  exliaustcd.  They  naturally  turned 
for  new  material  to  novels  and  historical  works;  and  these 
have  now  become  a  prolific  source  of  motion  picture 
feature  film  material. 

The  question  at  once  arises  as  to  who  may  grant  the 
motion  picture  rights  to  such  works.  A  motion  picture 
reproduction  of  a  novel  being  a  dramatization,  the  mo- 
tion pictui'e  rights  are  vested  in  the  owiier  of  the  dj-amatic 
rights.  ^- 

As  between  the  author  and  the  publisher  it  is  always  a 
question  of  contract  in  each  case  whether  the  author  has 
retained  or  parted  with  his  dramatic  rights.  A  mere 
license  to  publish  does  not  give  any  performing  rights  to 
the  publislier.'"' 

Under  the  Copyright  Law  the  owner  of  the  copyright 

>*  Photo  Drama  Motion  Picture  tion    of    the    novel    witli    liviiiR 

Co.  V.  >^ucial  Uplift  Corp.  (1915),  actors  upon  the  stage,  and  tiie 

220  Fed.  (C.  C.  A.)  448,  which  right  to  reproduce  the  novel  in 

holds  that  the  grantee  of  the  ex-  motion  pictures, 

elusive  dramatization  riglits  to  a  "  iri7//(/m.s'  ct   al.   v.  Fildman, 

novel  accjuires  two  distinct  rights:  (Eng.)  (1913),  Times,  Oct.  IS. 
the  right  to  make  a  play  produc- 


12  THE   LAW   OF  MOTION   PICTURES 

in  a  novel  has  the  exclusive  right  to  dramatize  the 
work." 

Hence,  where  the  pubhsher  of  a  novel  copyrights  the 
work  of  an  author,  a  third  party  purchasing  the  motion 
picture  rights  to  such  novel,  without  notice  of  the  rights 
of  the  author,  buys  them  free  from  any  claims  which  the 
author  may  have  as  against  the  pubhsher.  If  the  record 
in  the  copyright  office  shows  that  the  pubhsher  is  the 
owner  of  record  of  such  copjTight,  the  purchaser  is  not 
bound  to  inquire  what  relationship  exists  with  respect  to 
the  work  between  the  pubhsher  and  the  author. ^-^ 

As  a  matter  of  fact  the  pubhsher  may  be  holding  the 
copyright  as  trustee  for  the  author;  his  rights  may  be 
limited  to  the  extent  only  of  reproducing  the  novel  in 
copies  for  sale.  But  if  the  copyright  record  does  not  dis- 
close any  such  relationship  a  purchaser  for  value  without 
notice  buys  free  and  clear. 

If  the  author  wishes  to  retain  his  rights  it  is  advisable 

"  Copyright  Act  of  1909,  Sec-  have  suspected,  although  an  ex- 

tion    1,   subdivision    (b).     Photo  amination    of    the    record    title 

Drama    Motion    Picture    Co.    v.  provided  for  by  law  shows  good 

Social    Uplift   Corp.    (1915),  220  title.     This,  to  my  mind,  would 

Fed.  (C.  C.  A.)  448.  place  a  duty  upon  a  person  dcal- 

^^  Bradij  \.  Reliance  Co.  (1916),  ing  with  the  owner  of  a  copy- 
232  Fed.  (D.  C.)  259,  Mayer,  J.:  righted  work  which  the  law 
"Where  a  publisher  copyriglits  a  never  contemplated,  and  which 
work  of  an  author  tlicre  must  of  from  the  standpoint  of  com- 
necessity  exist  some  arrangement  mercial  requirements  would  be 
between  them,  and  that,  per-  unjust,  and  seriously  hamper  legit- 
chance  the  author  may  have  re-  imate  dealings."  See  also:  Photo 
served  something  undisclosed  Drama  Motion  Picture  Co.,  Inc., 
which  the  person  dealing  witl;  v.  Social  Uplift  Film  Co.  (1915), 
the  owrur  of  tl»c  copyright  should  220  Fed.  (C.  C.  A.)  448. 


WHERE  BASED  UPON  A  NOVEL  OR  HISTORICAL  WORK       13 

for  him  to  file  an  instrument  in  the  copyright  office 
setting  forth  the  fact  that  the  copyright  is  held  by  his 
pubUsher  as  a  trustee  merely,  subject  to  specified  limita- 
tions. Anything  which  would  put  the  prospective  pur- 
chaser of  the  motion  picture  rights  upon  incjuiry  would 
probably  be  sufTicient. 

The  author,  by  faiUng  to  have  some  notation  made  in 
the  copyright  office  of  his  rights  against  the  publisher, 
does  not,  however,  lose  his  remedies  against  the  publisher 
for  the  breach  of  the  trust.  The  registration  of  the  copy- 
riglit  in  the  name  of  the  assignee  (publisher)  does  not 
confer  the  dramatic  rights  upon  the  assignee  whore  they 
had  been  retained  by  the  author.  Under  such  an  ar- 
rangement the  assignor  (author)  becomes  the  proprietor 
of  the  dramatic  rights  secured  by  the  copjTight  in  the 
name  of  the  pubhsher.^^ 

There  arises  the  querj',  where  motion  pictures  are 
produced  by  assignees  both  of  the  author  who  originally 
retained  the  right,  and  of  the  third  party  who  purchased 
the  rights  from  the  publisher,  as  to  who  may  enjoin,  if 
at  all,  the  exhi])ition  of  the  motion  picture  of  the  other. 
It  would  seem  to  follow,  from  a  reading  of  Judge  ^Mayer's 

•«  Ford  V.   Blaney    Amusement  of   the   magazine   and   that   the 

Co.    (190G),    14S    Fed.    (C.    C.)  dramatization  rights  remained  in 

642:  Tlie  work  was  published  in  the  autlior.     See  also:  Mifflin  v. 

a    magazine    wliich    was    copy-  White  {lim),  1<)0  U.  S.  200;  23 

righted    by    the    magazine    pro-  Sup.  Ct.  709;  Mifflin  v.  Duttun 

prietor.     It   was   held    that    by  (1003),  190  U.  S.  205;  23  Sup.  Ct. 

selling  his  right  to  copyright  but  771;  Holmes  v.  Ilurd  (1S99),  174 

reserving  to  himself  the  drama-  U.  S.  82;  19  Sup.  Ct.  GOG;  Dam  v. 

tization    rights,    the    work    was  Kirk  La  Shelle  (1910),  175  Fed. 

copyrighted  by  the  copyrighting  (C.  C.  A.)  902. 


14  THE    LAW   OF   MOTION   PICTURES 

decision  in  Brady  v.  Reliance  Co.,  that  the  publisher's 
assignee  has  the  exclusive  right  to  the  production  of  the 
picture,  and  that  the  right  of  the  author's  assignee  is 
suspended  during  the  term  of  the  grant  from  the  publisher 
to  his  assignee. 

If  there  is  an  outright  sale  to  the  third  party  by  the 
publisher  of  the  motion  picture  rights,  the  author  loses 
such  rights  forever. 

Many  of  our  most  popular  novels  are  based  upon  his- 
torical events.  There  is  no  question  that  these  events 
are  within  the  public  domain.  Let  us  take  the  case  of  a 
historical  novel  written  to-day  and  based  upon  some 
familiar  historical  subject,  the  development  of  the  theme 
adhering  closely  to  the  sequence  of  the  events  as  they 
actually  occurred.  Let  us  assume  that  this  novel  is  duly 
copyrighted,  and  that  the  author  or  proprietor  of  the 
novel  grants  away  the  motion  picture  rights.  Will  the 
licensee  acquire  such  rights  in  the  arrangement  and  de- 
velopment of  his  theme  as  will  preclude  another  from 
producing  a  similar  picture? 
Q\0^  We  do  not  think  so.  ;^  The  arrangement  and  develop- 
ment of  a  well-known  historical  theme  cannot  strictly  be 
said  to  be  original,  and  while  the  novel  as  a  whole  may 
be  the  subject  of  copyright,  yet  those  portions  of  it  which 
treat  of  things  within  the  public  domain  cannot  acquire 
the  protection  of  copyright. 

Anyone  may  make  an  independent  dramatization  from 
the  common  source  but  must  not  make  use  of  or  resort 
to  the  liconsoo's  dramatization  or  the  novel  from  which 
the  dramatization  was  made. 

For  the  same  reason  a  motion  picture  based  directly 


WHERK  PICTURE  IS  BASED  UPON  A  SHORT  STORY,  ETC.       15 

upon  a  well-known  historical  episode,  instead  of  upon  a 
novel  and  duly  e()i)yriglited  can  acciuire  no  exclusi\e  ri^ht, 
and  the  proprietor  may  not  enjoin  the  reproduction  of 
another  i)icture  portraying  the  same  historical  event  or 
sequence  of  events. 

This  rule  is,  of  course,  sul)ject  to  the  limitation  that 
in  the  original  novel  or  motion  picture  the  events  spoken 
of  are  purely  historical,  ^^^len  these  events  are  so  inter- 
spersed with  imaginative  fiction  as  to  constitute  a  com- 
plete story  in  themselves,  the  treatment  may  then  be 
said  to  be  original  and  a  reproduction  of  the  work  with 
the  imaginative  fiction  contained  therein,  constitutes  an 
infringement. 

Historical  events  are  themes  in  the  pubhc  domain. 
Wliat  is  accorded  protection  in  the  case  of  themes  in  <he 
public  domain  is  the  original  development  and  Ircalment 
of  those  themes.  It  is  scarcely  possible  for  two  people 
to  develop  one  theme  m  the  identical  manner;  for  that 
reason  it  is  unlikely  that  we  will  have  an  exact  duplication 
on  films  of  c\'en  a  popular  and  well-known  theme  unless 
there  is  an  intent  to  infringe." 

Section  3. — Where  the  motion  picture  is  based  upon  a 

short  story,  sketch,  poem,  lecture,  sermon  or  other 

kindred  work. 

The  rights  of  the  author  of  a  short  stor>',  sketch,  poem, 

lecture,  seniion  or  other  kindred  work  are  identical  with 

those  of  a  novelist.'^    The  rights  and  liabilities  which  arise 

upon  the  sale  of  such  work  by  the  author  or  proprietor 

"  See     cases    of     iiifrinp;cmcnt  "  Copyright   Act  of  1909,  See- 

under  Sections  157  to  IGl.  tion  1,  subdivisioix3  (a),  (b),  (d). 


16 


THE    LAW   OF  MOTION   PICTURES 


to  a  motion  picture  producer  are  the  same  as  those  which 
arise  between  a  novehst  and  motion  picture  producer.  ^^ 

It  is  customary  for  the  pubUsher  of  a  periodical  or 
newspaper  to  copyright  the  entire  work  in  his  own  narne. 
If  he  has  been  authorized  by  the  author  or  proprietor  of 
the  work  to  secure  copyright,  but  the  rights  granted  to 
him  are  solely  that  of  pubUcation  of  the  work,  the  maga- 
zine or  newspaper  proprietor  holds  the  copyright  as 
trustee  for  the  author  or  proprietor  of  the  work."° 

"  Section  2,  upon  the  sale  of  the  book ,  which 

^Ford  V.  Blaney   (1906),   148      is   alleged   in   the   complaint   in 


Fed.  (C.  C.)  642:  "I  think, 
under  this  provision  (referring 
to  Section  4952  of  the  U.  S.  Re- 
vised Statutes)  it  is  not  necessary 
that  the  author  himself  should 
have  taken  out  the  copjTight 
of  a  book,  in  order  to  preserve 
the  right  of  dramatizing  it,  but 
that  the  author  can  sell  the 
copyriglit  of  the  book  to  a  per- 
son, wlio,  as  proprietor,  can 
take  out  the  copyright,  while 
the  author,  at  the  same  time, 
retains  the  right  of  dramatization. 
If  a  copyright  of  a  book  has  been 
obtained  by  anybody  entitled 
by  law  to  obtain  it,  I  think  that 
the  author  of  the  book  or  his 
assigns,  a  term  which  as  used  in 
Section  4952,  means  in  my  ojjinion 
an  assignee  of  the  riglit  of  dram- 
atization, has  the  exclusive 
right  to  dramatize  the  work,  if 
he  reserved  the  right  to  dramatize 


this  case.  The  object  of  the 
statute  seems  to  have  been  to 
provide  that  the  author's  right 
of  dramatization  of  a  book  shall 
not  be  protected  unless  the  book 
be  copyrighted;  but  /  do  not  see 
anything  in  the  statute  which  re- 
quires that  the  author  shall  take 
out  the  copyright  of  the  book." 

In  Drone  on  Copj'right,  at 
page  260:  "A  person  who  is  not 
the  author  or  owner  of  a  work 
may  take  out  the  copyright  in 
his  own  name,  and  hold  it  in 
trust  for  the  righlful  owner. 
Thus,  when  an  article  has  first 
been  published  in  a  cyclopjcdia, 
magazine,  or  any  other  publica- 
tion, the  h^gal  title  to  the  copy- 
right, if  taken  out  in  the  name 
of  the  publisher,  will  vest  in  him. 
But  it  may  be  the  property  of 
the  author,  and  held  in  trust  for 
him.    And  the  same  is  true  when 


WHKRE   Py'TlUE   IS  HASt:D  UPON  A   SHOUT  STORY,   ?:TC.        17 

Here,  as  in  tlie  case  of  a  novel,'-'  care  must  be  exercised 
by  the  author  or  i)roprietor  of  the  work,  if  he  has  re- 
tained any  riglits  therein,  to  have  something  placed  upon 
the  copjTight  record  to  show  what  rights  have  been 
granted  to  the  publisher  and  what  rights  have  been 
retained. 

Where  the  author  or  proprietor  of  the  work  wishes 
to  resers'e  the  dramatic  rights,  the  usual  arrangement  is 
for  him  to  make  a  contract  with  the  publislier  granting 
the  exclusive  publication  rights  to  the  publisher  and  au- 
thorizing him  to  copyright  the  work.  The  pubhsher  on 
his  part  agrees  to  assign  the  copyright  when  secured  by 
him  to  the  author  or  proprietor  of  the  work.  This  enables 
the  publisher  to  copyright  the  entire  periodical  or  news- 
paper and  at  the  same  time  obtain  the  benefit  of  a  first 
publication.  The  publisher  then  assigns  his  copjTight  to 
the  author  or  proprietor  of  the  work,  who  now  becomes 
possessed  of  all  the  rights  incidental  to  copjTight,  in- 
cluding, of  course,  the  right  to  dramatize. 

In  this  way  there  is  no  dedication,  the  magazine  ])ub- 
lisher  is  the  first  one  to  publish  the  work,  and  the  author 
or  proprietor  of  the  work  now  has  the  dramatization 
rights  which  include  the  motion  picture  rights.-- 

the   copyrlRht   of   a   l)0()k   wliich  and   Express   v.    Life   Pitbl.    Co. 

belongs  to  the  author  is  entered  (1912),  192  Fed.  (C.  C.  A.)  S99. 
in    the    name   of   the    pubhsher.  *'  Section  2. 

In  such  case,  a  court  of  ecjuity,  ^' Ford  v.   Blawy   (190G),  HS 

if    called    upon,    may    decree    a  Fed.   (C.  C.)  642;  Dom  v.  Kirk 

transfer  of  the  copyrip;ht  to  be  La  Sheik  (1910),  17.')  Fed.  (C.  C. 

made  by  the  owner."     See  al.so:  A.)  902;  Fitch  v.   Young  (1911), 

Dam  V.   Kirk  La  Shellc   (1910),  2.30  Fed.  (D.  C.)  743;  aflf'd  239 

175  Fed.  (C.  C.  A.)  902,  and  Mail  Fed.  (C.  C.  A.)  1021. 


18  THE    LAW    OF   MOTION   PICTURES 

If  the  author  or  proprietor  of  the  work  wishes  to  secure 
the  copjTight  in  his  own  name  he  may  do  so  by  placing 
the  proper  notice  of  copyright  immediately  after  the 
title  of  his  work  and  by  depositing,  promptly  after  pub- 
Ucation,  two  copies  of  the  periodical  or  newspaper  in 
which  his  work  is  contained  together  with  an  apphcation 
for  copjTight  registration,  and  the  required  fee,  in  the 
office  of  the  Register  of  Copyrights. -^ 

Finally,  it  must  be  borne  in  mind  that  if  the  publisher 
is  not  given  the  right  to  copyright  the  work  contained 
in  his  periodical  or  newspaper,  though  he  has  been  given 
the  right  to  pubhsh  such  work,  the  work  vnW  not  be 
protected  by  a  copyi'ight  secured  upon  the  entire  pub- 
hcation  by  the  proprietor  of  the  periodical  or  newspaper, 
and  the  work  will  fall  into  the  pubhc  domain. 

In  that  event  any  motion  picture  producer  may  use 
the  work  without  securing  the  consent  of  the  publisher, 
or  the  author  or  proprietor  of  the  work.-'' 

23  Copyright  Act  of  1909,  Sec-  proprietor    in    copyi'ighting    the 

tions  9,  10  and  12;  Rules  and-  magazine,  secures  copyright  only 

Regulations   for   Registration   of  in  those  parts  of  the  magazine 

Claims     to    Copyright,    Section  which  belong  to  him  or  for  the 

33.  owners  of  which  he  is  acting  as 

^*  Mifflin  V.  White— Mifflin  v.  agent.     The  fact  that  the  work 

Dutton  (1903),  190  U.  S.  2G0-265;  was  published  in  serial  form  and 

23  Sup.  Ct.  709-771.    Tlie  publi-  subseciuently    coml)ined    in    one 

cation  of  a  story  in  a  magazine,  complete    work   and   such    com- 

the  ownership  of  such  story  re-  plete  work  entered  in  the  copy- 

maining  in  the  author,  and  the  right  office  did  not  validate  the 

publisher    not    l)eing    the    agent  copyright.     See  also:  Holmes  v. 

of  th(!  author  in  securing  copy-  Hurst   (1S99),   174  U.  S.  82;   19 

right,    constituted    a    dedication  Sup.  ("t.  00(). 

of    tlie    work.      The    magazine  On  tfie  question  wliether  there  is 


WHERE    BASED    UPON    AN    ORIGINAL   SCENARIO  10 

Section  4. — Where  the  motion  picture  is  based  upon 
an  original  scenario,  that  is  one  not  based  upon 
any  other  work. 

\Miethcr  or  iK^t  a  scenario  of  a  motion  picture  play  may 
be  the  subject  of  copyright  as  an  unpublished  dramatic 
composition,  is  an  open  question.  The  Register  of  Copy- 
rights has  taken  the  position  that  Section  eleven  of  the 
Copyright  Act  retiuires  the  deposit  of  "one  complete  copy 
of  such  work  if  it  be  a  dramatic  composition,"  and  that  a 
scenario  is  not  a  completed  work  and  hence  does  not 
fulfill  the  requirements  of  that  section. 

In  this  respect  we  bcheve  that  he  is  \\Tong.  To  our 
mind  a  scenario  is  a  completed  work  in  that  it  is  an  exact  i 
reproduction,  in  words,  of  action  upon  the  screen.  It^ 
embodies  witliiii  itself  the  orderly  arrangement  and  de- 
velopment of  a  theme  that  enables  actors  to  reproduce 
the  same  before  the  camera.  In  that  respect  it  is  similar 
to  a  play,  wliich  is  primarily  a  veliicle  to  enable  actors  to 
portray  the  same  upon  the  stage.  Both  the  scenario 
and  tlie  play  have  as  their  primary  object  the  attainment 
of  this  end.  .Vnd  the  fact  that  in  the  play  we  have  dialogue 
should  not  alter  the  situation.  The  scenario  frequently 
has  what  the  play  lacks — minute  directions  as  to  acting. 
And  wliile  it  is  doubtless  true  that  mere  stage  directions 
and  stage  business  are  not  entitled  to  protection  under 
the  Cop}Tight  Law,-^  yet  where  the  composition  tells  a 

n   presumption  that  the  magazine  v.  Scribner  (1S92),  144  U.  S.  488; 

proprietor   acts   a.s   agent  for   the  12  Sup.  Ct.  734. 
owner    of   the    work    in    securing  *^  Serrena  v.  Jefferson    (1888), 

copyright.     See:   Pulte   v.    Derby  33  Fed.    (C.   C.)   347;   Bloom  v. 

(1852),  o  McLean,  328;  Bdford  Xixon  (1903),  125  Fed.    (C.  C.) 


20 


THE    LAW    OF   MOTION   PICTURES 


story  not  in  narrative  form,  but  by  words  giving  direc- 
tions as  to  acting  and  display  of  emotions,  it  is  as  truly 
a  dramatic  composition  as  a  work  narrating  a  story  in 
the  form  of  dialogue.-® 


977;  Chappell  v.  Fields  (1914), 
210  Fed.  (C.  C.  A.)  864;  Savage 
V.  Hoffman  (1908),  159  Fed.  (C. 
C.)  584;  Fuller  v.  Bemis  (1892), 
50  Fed.  (C.  C.)  926;  Bishop  v. 
Viviana  &  Co.  (Eng.)  (1909), 
Times,  Jan.  5.  For  additional 
cases  see  Section  148. 

^'^Daly  V.  Palmer  (1868),  6 
Blatchf.  256:  A  scenario  is  a 
dramatic  composition  under  the 
description  given  in  this  case. 
"A  dramatic  composition  is  such 
a  work  in  which  the  narrative  is 
not  related  but  is  represented  by 
dialogue  and  action.  Where  a 
dramatic  composition  is  repre- 
sented in  dialogue  and  action  by 
persons  who  represent  it  as  real, 
by  performing  or  going  through 
with  the  various  parts  or  charac- 
ters assigned  to  them  severally, 
the  composition  is  acted,  per- 
formed, or  represented;  and  if 
the  representation  is  in  pul)lic, 
it  is  a  public  representation.  To 
act  in  the  sense  of  the  statute  is 
to  represent  as  real,  by  coun- 
tenance, voice  or  gesture  that 
which  is  not  real.  A  cliaractor 
in  a  play   who  goes   through  a 


series  of  events  on  the  stage  with- 
out speaking  if  such  be  his  part 
in  the  play,  is  none  the  less  an 
actor  in  it  than  one  who,  in  addi- 
tion to  motion  and  gestures, 
uses  his  voice.  A  pantomime  is 
a  species  of  theatrical  entertain- 
ment in  which  the  whole  action 
is  represented  by  gesticulation 
without  the  use  of  words.  A 
written  work,  consisting  wholly 
of  directions  set  in  order  for 
conveying  the  ideas  of  the  author 
on  a  stage  or  public  place,  by 
means  of  characters  who  repre- 
sent the  narrative  wholly  by 
action  is  as  much  a  dramatic 
composition  designed  or  suited 
for  public  representation  as  if 
language  or  dialogue  were  used 
in  it  to  convey  some  of  the  ideas." 

The  Circuit  Court  of  Appeals 
in  Daly  v.  Webster  (1892),  56 
Fed.  (C.  C.  A.)  at  p.  486,  ap- 
proved of  the  excerpt  of  the  opin- 
ion of  Judge  Blatchford  quoted 
above. 

Fuller  V.  Bemis  (1892),  50  Fed. 
(C.  C.)  926:  "It  is  essential  to 
such  a  composition  that  it  should 
tell  some  story.     The  plot  may  be 


WHERE    BASED    I'PON    A.\    ORIfJINAL   SCENARIO  21 

A  play  may  have  greater  literary  \alue,  yet  the  srenario 
usually  possesses,  for  its  own  peculiar  purposes,  a  greater 
practieal  value.  The  author  of  a  scenario  should  not  l>e 
compelled  to  publish  his  work  in  book  form  in  order  to 
secure  copyright  therein.  The  scenario  is  not  written  for 
the  i)urposc  of  l)eing  reproduced  in  copies  for  sale. 

If  our  position  is  correct,  the  rights  of  the  author  or 
proprietor  of  a  scenario  are  coincident  with  those  of  the 
author  or  ])roprietor  of  a  dramatic  composition.  He  has 
the  exclusive  right  to  make  other  forms  of  dramatiza- 
tions of  the  scenario,  he  may  develop  the  scenario  into 
the  form  of  a  short  story  or  a  novel."  He  may  reproduce 
the  scenario  in  copies  for  sale.  An  outright  sale  of  the 
manuscript  of  an  uncopyrighted  scenario  or  of  the  copy- 
right of  a  copyrighted  scenario  conveys  to  the  purchaser 
all  the  rights  which  the  author  had.-" 

simple.      It  vunj  be  bid  the  nana-  Moore  v.  Edwards  {Eng.)  (190.3), 

tire  or  reprcfientation  of  a  single  Tiiiu's,  March    3:    Ilelil    that    a 

transaction;  but  it  mitst  repeat  or  "scenario"  of  a  play  when  written 

viimic  some  action,  speech,  emotion,  clown  was  the  .subject  of  protec- 

passion,    or    character,    real    or  tion,  a.s  a  dramalic  composition. 
imaginary.     Ami  when  it  does,  it  Wiganx.  Strange  (Eng.)  (1865), 

is  the  idea-f  thii.'i  expressed  which  L.  R.  1  C.  P.  17."):  A  ballet  was 

become  subject  of  copyright."  held  to  be  a  play. 
Tate  V.  FiUlbrook  (Eng.)  (1908) ,  «'  See  Section  1. 

77  L.  J.  K.  H.  577;  1  K.  B.  821;  ^Palmer  v.  DeWitt  (1872),  47 

98  L.  T.  70C;  24  T.  L.  R.  347.  X.  Y.  532:  "This  proix-rty  in  a 

An  idea  or  plot  together  with  the  manuscript  is  not  distinsuishable 

manual  and  physical  actions  was  from  any  other  personal  property, 

held   to   be   "a   dramatic   |)iece"  It  is  poverned  by  the  .same  rules 

within  the  meaniiiK  of  Section  2  of  transfer  ami  succession  and  is 

of  the  English  Copyright  Act  of  protected   by   the   same   process, 

1842.  and  has   the   benefit  of  all   tlie 


22 


THE    LAW   OF   MOTION   PICTURES 


Hence  in  the  usual  transaction  between  a  scenario 
writer  and  a  film  producer  where  the  scenario  is  pur- 
chased for  a  lump  sum  of  money,  the  author  of  the  sce- 
nario divests  himself  of  all  rights  in  and  to  the  same  and 
the  film  producer  acquires  the  sole  right  not  only  to  make 
a  motion  picture  reproduction  of  the  scenario,  but  also 
to  make  any  and  all  of  the  above  mentioned  versions  of 
the  same.  Here,  as  in  the  case  of  a  novel  or  drama,  the 
author  may  limit  the  grant  by  express  reservations  in  the 
contract  of  sale. 

Wliere  there  is  no  contract  of  sale,  but  a  sale,  that  is, 
where  the  manuscript  and  money  are  simultaneously  ex- 
changed, the  producer  acquu-es  all  rights  in  the  scenario.-^ 
remedies  accorded  to  other  prop-      author  in  assigning  the  right  to 


erty."  It  follows  "the  person  of 
the  owner,  and  is  governed  by 
the  law  of  his  domicile." 

29  Dam  V.  Kirk  La  Shelle  (1910), 
175  Fed.  (C.  C.  A.)  901:  "Now, 
as  a  matter  of  law,  it  seems  pos- 
sible to  draw  only  one  conclusion 
from  the  facts  surrounding  the 
acquisition  of  the  story  by  the 
Ess  Ess  Publishing  Company,  and 
that  is  that  it  became  the  pur- 
cha.scr,  and  consequently,  the 
proprietor  of  the  work,  with  all 
the  rights  accompanying  owner- 
ship. The  author  offered  the 
story.  The  publislier  accepted 
and  paid  for  it,  and  the  author 
transferred  it  without  any  reser- 
vations whatever. 

"While  it  is  probalilc  tliat  an 


publish  and  vend  his  work  may 
retain  and  reserve  the  rights  of 
translation  or  dramatization  {Ford 
V.  Blaney  Amusement  Co.  (1906), 
148  Fed.  (C.  C.)  642,  a  sale  or  as- 
signment without  reservations 
would  seem  necessarily  to  carry  all 
the  rights  incidental  to  ownership. 
And  a  transaction  in  which  an 
author  delivers  his  maniiscript  and 
accepts  a  sum  of  money  'in  full 
payment  for.  story'  cannot  be  re- 
garded as  a  sale  ivith  reservations. 
The  courts  cannot  read  words  of 
limitation  into  a  transfer  which 
the  parties  do  not  choose  to  use." 
Sec  also:  Lacy  v.  Toole  (ICng.) 
(1867),  15  L.  T.  N.  S.  512,  wherein 
it  wa,s  held  that  a  letter  written 
by  the  owner  of  a  copyright  in  a 


WHERE    PICTURE    IS    BASED    UPON    A    NEWS   ITEM       23 

It  froquently  happens  that  in  vending  his  wares  tiio 
scenario  writer  sends  copies  of  the  same  work  to  a  ninnher 
of  motion  picture  producers.  Several  of  the  producers 
purcliase  the  scenario,  each  not  knowing  that  some  other 
producer  has  purchased  the  same  work.  The  first  pur- 
chaser in  point  of  time  will  be  the  owner  of  the  scenario, 
for  at  the  time  that  the  other  producers  accept  the  offer 
of  the  scenario  WTiter,  there  is  nothing  that  they  can 
purchase,  the  author  having  been  divested  of  his  title 
to  the  scenario  by  the  prior  purchase  of  the  work. 

Section  5. — Where  the  motion  picture  is  based  upon  a 
news  item. 
It  is  well  settled  that  the  facts  and  ideas  contained 
Li  items  in  the  daily  newspapers,  and  held  out  to  be  state- 
ments of  fact,  may  be  appropriated  and  used  in  any 
manner  by  any  one  of  the  pubUc.^°   The  phrase  above 

dramatic    piece    to    another    in  tcrnational  News  Service    (1917), 

wuich  he  said:  "to  let  you  have  240  Fed.  (D.  C.)  983;  aff'd  June, 

my  drama"  assigned  all  the  rights  1917, opinion  by  Hough,  J. ;  Walter 

in  the  drama.  v.  Slcinkopff  (Eng.)  (1892) ,  3  Ch. 

^0  Tribune    Co.     v.     Associated  4S0;  Springfield  \.  Thame  (Eng.) 

Press   (1900),  IIG   Fed.    (C.    C.)  (1903),  89  L.  T.  242;  Press  Asso- 

126,  and  cases  cited  therein.     In  ciation  v.  Xorthcrn,  etc.,  Agency 

Dnvics  V.  Bowes  (1913),  209  Fed.  (Eng.)  (1910),  Times,  Dec.  8. 

(D.  C.)  53;  aff'd  219  Fed.  (C.  C.  See    in    tliis    connection:    Ex- 

A.)  178,  the  court  said:  "All  tliat  change  Telegraph  Co.  v.  Howard 

wivs   ever   copyriglited   regarding  (Eng.)    (1900),  Times,  Mar.   22. 

this  tale  was  tlie  form  of  telling,  A  news  agency   has  a   projx>rty 

the  sequence  and  choice  of  words  right  in  unpublished  news,  and 

and    arrangement    of    sentences  may  prevent  a  rival  agency  from 

coined    by    the    plaintiff.  .  .  ."  stealing  the  same. 
See  also:  Associated  Press  v.  In^ 


24  THE    hAW   OF   MOTION    PICTXJKES 

used  ''held  out"  is  used  advisedly.  Even  where  the 
news  item  is  a  creation  of  the  mind  of  the  reporter,  and 
hence,  an  original  work,  yet  if  the  work  is  pubhshed  as 
news  and  not  as  fiction,  the  author  or  proprietor  of  the 
work  wdll  not  be  permitted  to  show  that  the  work  was 
one  solely  of  his  creation. ^^ 

Where,  however,  the  work  pubhshed  in  the  newspaper 
is  fiction  and  is  presented  to  the  pubhc  as  such,  the  same 
rights  accrue  to  the  author  or  proprietor  as  in  the  case 
of  a  work  pubhshed  in  a  magazine. ^- 

Section  6. — "Where  the  motion  picture  is  based  upon  a 
work  in  the  public  domain. 

Whenever  possible,  motion  picture  producers  of  course 
make  use  of  such  works  as  are  in  the  pubhc  domain. 
Care  must  be  taken  that  in  making  use  of  such  works,  no 
use  is  made  of  other  works  based  upon  those  in  the  public 
domain.  It  frequently  occurs  that  in  making  adaptations 
of  such  public  literary  property,  the  ingenuity  and  orig- 
inality of  the  adaptor  has  combined  to  create  a  new  work. 

^^^lere  the  work  is  a  novel  or  short  story  the  adaptor 
may  make  a  dramatization  thereof;  he  may  novelize  a 
dramatic  composition;  he  may  rearrange  the  work  and 
in  so  doing  use  originality;  he  may  condense  such  work. 
Those  portions  of  such  new  work  which  are  due  to  the 

"Danes  V.  Boiccs   (101;}),  200  was   a    translation    from   a  well- 

Fcd.   (D.  C.)  .W;  aff'd  210  Fed.  known   foroi^n   writer,  held  that 

(C.  C.  A.)  178.  such  pretense  vitiated  the  copy- 

Wright  V.  Tullis  (EnR.) ,  1  C.  B.  riRht. 

87;i.      Where    a    putjhshcr    pre-  '^  Section  3. 
tended  that  a  copyrighted  work 


WHERE    PICTURE    IS    PRODUCED    IN    SERIAL   FORM       2.') 

originality,  ingonuity  and  literary  effort  of  the  adajjtor 
will  be  fully  i)rutected. 

The  same  api)lies  to  translations  made  of  foreign  works 
in  the  public  domain.  The  translator  is  entitled  to  pro- 
tect his  translation  as  against  everyone.  No  one  may 
use  his  translation,  although  anyone  may  make  his  own 
independent  translation  of  the  original  work  and  make 
whatever  use  of  his  own  translation  and  the  original  work 
he  sees  fit.^' 

Section  7. — Where  the  motion  picture  is  produced  in 
serial  form. 

A  recent  development  of  the  motion  i)icture  industry 
is  the  production  of  films  in  which  the  story  is  told  in 
serial  form,  one  or  two  reels  being  shown  at  a  time. 
Simultaneously  with  the  exhibition  of  the  film  the  story 
of  the  picture  is  published  in  newspapers  in  instalhnents. 

The  right  to  publish  the  story  in  the  newspapers  does 
not  necessarily  belong  to  the  film  producer.  It  belongs 
to  the  o\Mier  of  the  publication  rights  in  the  drama,  novel, 

"  Stevemon  v.  Fox  (1915),  22G  motion  picture  play  was  prepared 

Fed.  {D.C.)0'M]  Shook  X.  Rankin  from  and  is  an  appropriation  of 

(1875),   Fed.   Ca.s.    (C.   C.)  No.  the  plaintiff's  Fechtcr  version  and 

12804;  O'Neill  v.  General  Film  Co.  infringes  upon  i)laintiff's  common 

(1915),    152    N.    Y.    Supp.    599;  law  property  riglit  therein.     Dc^ 

modified  and  aff'd  in  171  A.  D.  fendant  claims  that  the  motion 

(X.  Y.)   854;   157   N.  Y.  Supp.  picture    play    was    produced    by 

1028;  but  not  modified  on  qucs-  resort  to  original  .sources,  alleged 

tion   of   infrinffeinent.      The   de-  to  he  open  to  all  .  .  .  and  that 

fendant  was  leasing  out  a  photo  in  .so  far  as  there  is  any  similarity 

play  entitled  "Count  of  Monte  between  the  motion  picture  play 

Cristo."    "  It  is  claimed  that  such  and   the   Fechtcr   version,   it   is 


26  THE    LAW   OF   MOTION   PICTURES 

story  or  scenario  from  which  the  film  was  reproduced.^* 
The  printing  of  the  work  whether  in  whole  at  one  time 
or  in  parts  at  different  times  as  in  a  serial  story,  con- 
stitutes merely  a  reproduction  of  the  work  in  copies  for 
sale  within  the  meaning  of  the  Copyright  Act.  It  fre- 
quently happens  that  the  film  producer  has  merely  the 
right  to  reproduce  the  work  in  the  form  of  a  motion  picture, 
the  pubHcation  rights  having  been  retained  by  the  author 
or  having  been  granted  to  some  third  party. 

The  expression  ''serial  rights"  has  acquired  a  secondary 
meaning  in  the  pubhshing  and  motion  picture  business. 
Where  one  sells  the  "serial  rights"  the  courts  will  con- 
strue the  sale  as  a  grant  of  ''all  publishing  rights,  includ- 
ing magazine  and  newspaper  pubhshing  rights,  and 
excepting  only  book,  dram.atic  and  moving  picture  scenario 
rights."  Ey  book  rights  the  court  undoubtedly  means 
the  right  to  novehze.^^ 

Section  8. — ^Where  the  relationship  13  tliat  of  employer 
and  employe. 
It  frequently  becomes  necessary  to  decide  whether  the 

lawful   and   proper   in   that   the  See  also  Section  159. 

similar  incidents  and  characters  »'  New  Fiction  Pub.  Co.  v.  Star 

are  found  in  the  novel  and  earlier  Co.  (1915),  220  Fed.  (D.  C.)  994. 

versions  [that  is  the  works  in  the  ^''  New  Fiction  Pub.  Co.  v.  Star 

public  domain]."    The  court  then  Co.    (1915),   220    Fed.    (D.    C.) 

finds  that  the  defendant  has  in-  994. 

fringed  tlic  plaintiff's  work.  See  also:  Heineman  v.  Smart 

See  also:  Byrne  v.  Statist  Co.  Set  (Eng.)  (1909),  Times,  July  15. 

(EnR.)  (1914),  1  K.  B.  622,  and  Defines  "serial   rights,"   "maga- 

Wyattw.Burnard  {Eng.), 3  Y.  and  zine    rights"     and     "newspaper 

B.  77.  syndicate  rights." 


RELATIONSHIP   OF   EMPLOYER   AND   EMPLOYE  27 

relationship  existing  between  an  author  and  a  motion 
picture  j^roducer  is  that  of  independent  contractors  or 
that  of  master  and  servant. 

If  the  relationship  is  one  of  independent  contractors 
then  the  author  retains  all  those  rights  in  his  work  which 
have  not  been  expressly  or  by  necessary  implication,  from 
the  circumstances  of  the  case,  granted  to  the  motion 
picture  producer. 

If  the  relationship  is  one  of  master  and  ser\'ant  there 
is  a  presumption  in  law  that  the  parties  bargained — one 
to  give  up  the  results  of  his  mental  labor  in  exchange 
for  a  stipend  paid  by  the  other;  and  unless  the  servant 
expressly  reserves  unto  himself  some  rights  in  the  work, 
the  master  will  be  deemed  the  sole  proprietor  thereof 
and  entitled  to  all  the  benefits  flowing  out  of  such  owner- 
ship.^^ In  such  case  no  formal  assignment  of  all  rights 
in  the  work  is  necessary.^^ 

^^  Colliery  Engineer  Co.w.  United  Fed.    (C.    C.)    892;    Press   Puh. 

Corresp.  Schools  Co.    (1899),  94  Co.  v.  Monroe   (1896),  73  Fed. 

Fed.     (C.     C.)     152;     Carte    v.  (C.  C.  A.)  196;  Chamberlayne  v. 

Evans   (1886),  27   Fed.   (C.   C.)  Am.  Law  Book  Co.   (1908),   163 

861;    Schutnacher    v.    Schweneke  Fed.    (C.    C.)    858;    Am.    Law 

(1885),    25    Fed.    (C.    C.)    466;  Book  Co.  v.  Chamberlayne  (1908), 

Little  V.  Gould  (1852),  Fed.  Cas.  105  Fed.  (C.  C.  A.)  313;  Peters  v. 

No.S395;2Blatchf..362;LouTe/jrc  Borst  (1889),  9  N.  Y.  Supp.  789; 

V.  Dana  (1869),  Fed.  Cas.  No.  reversed  in  142  X.  Y.  62;  36  X.  E. 

8136;  Solomon  v.    United  Slates  814;   Heine   v.'  Applcton    (1857), 

(1890),  137  U.  S.  342;  11  Sup.  Ct.  Fed.  Cas.  Xo.  6324  (C.  C.) 

88;  Gill  V.  United  States  (1896),  ^' Lawrenec    v.    Ajlalo    (Eng.) 

160  U.  S.  426;  16  Sup.  Ct.  322;  (1902),  20  T.  L.  R.  42;  1  Ch.  264; 

Bleistein  v.  Donaldson  Lith.  Co.  85L.  T.  605.    Whore  the  publisher 

(1903) ,  188  U.  8.  239;  23  Sup.  Ct.  employed  and  paid  one  to  write  an 

29S;Dielmany.  White  {1900),  102  article  as  part  of  a  work  which 


28 


THE    LAW   OF  MOTION   PICTURES 


Although  the  rule  of  law  is  clear,  great  difficulty  has 
confronted  the  courts  in  arriving  at  the  true  relation 


the  publisher  was  producing  at 
his  own  risk  and  expense,  the 
natural  inference  of  fact — no 
agreement  in  writing  or  express 
words  being  necessary  to  the 
assignment  of  copyright — was  in 
the  absence  of  evidence  to  the 
contrary  that  the  publisher  ac- 
quired copyright  in  such  arti- 
cles. 

Sweet  V.  Benning  (Eng.)  (1855), 
16  C.  B.  459;  24  L.  J.  C.  P. 
175;  1  Jur.  (N.  S.)  543;  3  W.  B. 
519.  Where  the  owner  of  a 
periodical  contracted  with  one 
to  write  an  article  on  the  terms 
that  the  copyright  should  be  the 
property  of  such  proprietor,  such 
terms  were  not  required  to  be 
expressed  but  might  be  implied 
in  fact. 

Hattoji  V.  Kean  (Eng.)  (1859), 

7  C.  B.  (N.  S.)  268;  29  L.  J.  C.  P. 
20;  6  Jur.  (N.  S.)  226;  1  L.  T.  10; 

8  W.  R.  Where  a  manager  of 
a  theatre,  having  designed  to 
bring  out  an  old  play,  with  new 
scenery,  dresses  and  musical  ac- 
companiments, hired  A  to  com- 
pose the  requisite  music,  who  did 
so,  and  A  was  paid  for  his  work, 
the  sole  right  to  the  representa- 
tion or  performance  of  such 
musical  compositions,  as  part  of 


the  whole,  became  thereby  vested 
in  the  former,  wilhout  assignment 
or  the  consent  in  writing  of  A ,  the 
terms  of  the  contract  between 
them  being,  that  the  compositions 
should  become  part  of  the  entire 
dramatic  piece,  and  that  the 
manager  should  have  the  sole 
Uberty  of  representing  and  per- 
forming the  compositions  with 
the  dramatic  piece.  See  also: 
Bijrne  v.  Statist  Co.  (Eng.)  (1914), 
1  K.  B.  622;  Walter  v.  Howe  (Eng.) 
(1881),  50  L.  J.  Ch.  621;  29  W.  R. 
776;  44  L.  T.  727;  Sweet  v.  Evans 
(Eng.)  (1893),  1  Ch.  218;  62 
L.  J.  Ch.  404. 

Dennison  v.  Ashdown  (Eng.) 
(1897),  13  T.  L.  R.  226.  Held 
that  an  assignment  of  the  copy- 
right would  be  presumed  from 
the  conduct  of  the  parties  in 
dealing  with  each  other  for  a  long 
time,  even  though  no  actual  as- 
signment could  be  proved. 

Ward  Lock  &  Co.  v.  Long 
(Eng.)  (1906),  L.  R.  2  Ch.  550; 
75  Law  Journal,  Ch.  732;  95  Law 
Times,  345;  22  T.  L.  R.  798.  An 
agreement  whereby  the  author, 
in  consideration  of  a  sum  of 
money,  undertook  to  compose  a 
book  for  the  publisher,  was  a  suf- 
ficient assignment  of  the  copy- 


RELATIONSHIP   OF   EMPLOYER   AND    EMPLOYE 


29 


existing  between  the  parties.  That  has  been  specially 
the  case  where  the  person  was  engaged  to  perform  serv- 
ices other  than  that  of  writing  and  he  has  merely  as  an 
incident  to  his  employment  composed  literary-  works. 

In  one  instance  where  the  contract  provided  that  the 
plaintiff  should  write  a  play  to  be  produced  at  defendant's 
theatre  and  plaintiff  and  his  wife  were  to  act  therein, 
and  the  profits  to  be  divided  equally  between  the  parties, 
it  was  held  that  the  parties  were  independent  contractors 
and  as  there  had  been  no  express  grant  to  the  defendant 
the  play  belonged  absolutely  to  the  plaintiff. ^^ 


right,  and  was,  as  such,  enforcible 
by  the  publisher. 

See  also  Section  62  of  the 
Copyright  Act  of  1909. 

But  see  in  this  connection 
Hereford  (Bishop)  v.  Griffin  (Eng.) 
(1848),  16  Sim.  190;  17  L.  J.  Ch. 
210;  12  Jur.  255.  Where  one  was 
employed  to  write  an  article  for 
an  encyclopipdia,  the  owner  of 
that  encyclopaedia  might  not 
publish  the  article  in  any  otlior 
form  without  the  author's  con- 
sent, unless  the  article  was  written 
under  the  express  agreement  that 
copyright  in  it  should  vest  in  the 
owner  of  the  encyclopa;dia  for 
all  purposes. 

And  see:  London  University 
Press  V.  University  Tutorial  Press 
(Eng.)  (1916) ,  2  Ch.  601 ;  115  L.  T. 
301;  32  T.  L.  R.  698.  Where 
examiners   getting   up   a   set   of 


examination  papers  were  held 
not  to  be  "employes,"  and 
entitled  to  copyright  therein. 

'^Boucicault  v.  Fox  (1862),  5 
Blatchf.  87.  Plaintiff  who  was 
an  actor  and  author  contracted 
with  defendant  to  write  a  play 
to  be  produced  at  defendant's 
theatre  and  in  which  plaintiff 
was  to  act.  He  acted  in  it  for  a 
week,  then  withdrew,  although 
the  play  was  continued  for  some 
weeks  more.  Plaintiff  took  out 
copyright  of  the  play  in  his  own 
name.  A  few  days  later  he  at- 
tempted to  enjoin  defendant  from 
continuing  to  produce  the  play. 
The  court  said:  "That  agree- 
ment was  that  he  should  wTite 
this  play  and,  perhaps  some 
other  plays,  and  that  he  should 
contribute  his  and  his  wife's 
services   at   the   Winter   Garden 


30 


THE    LAW   OF   MOTION   PICTURES 


In  another  case  where  the  contract  provided  that  one 
who  was  engaged  at  a  specified   compensation  should, 

Theatre,  as  long  as  the  plays 
would  run  there,  and  receive  half 
the  profits,  as  a  compensation. 
This  cannot  be  construed  into  a 
contract  conferring  upon  Stuart, 
or  anyone  else,  the  legal  or  equi- 
table title  to  this  drama.  The 
title  to  literary  property  is  in  the 
author  whose  intellect  has  given 
birth  to  the  thoughts  and  wrought 
them  into  a  composition,  unless 
he  has  transferred  that  title,  by 
contract,  to  another.  In  the 
present  case  no  such  contract  is 
proved.  The  most  that  could 
possibly  be  said,  in  regard  to  the 
right  of  Stewart,  or  his  trustee, 
in  the  play,  is,  that  the  arrange- 
ment entitled  them  to  have  it 
performed  at  the  Winter  Garden 
as  long  as  it  would  run.  There  is 
not  the  slightest  foundation  upon 
which  they,  or  either  of  them, 
can  rest  a  claim  to  the  literary 
property  in  the  manuscript.  That 
property  was  in  the  plaintiff, 
subject,  at  most,  to  a  license  or 
privilege  in  favor  of  Stewart  & 
Fields,  to  have  the  piece  per- 
formed at  the  Winter  Garden. 
Whether  the  plaintiff  was  guilty 
of  a  breach  of  that  part  of  his 
agreement  which  l)oun{l  him  to 
bestow   his   own   and    his   wife's 


services,  we  need  not  inquire 
here.  Such  a  breach  if  proved, 
would  not  vest  the  proprietors  of 
the  theatre  with  the  title  to  'The 
Octoroon.'  A.  man's  intellectual 
productions  are  "peculiarly  his  own, 
and  although  they  may  have  been 
brought  forth  by  the  author  while  in 
the  general  employment  of  another, 
yet  he  will  not  be  deemed  to  have 
parted  with  his  right  and  transferred 
it  to  his  employer,  unless  a  valid 
agreement  to  that  effect  is  adduced." 

In  Roberts  v.  Myers  (1860),  20 
Fed.  Gas.  No.  11,906  (C.  C.),  it 
was  held  that  where  an  author 
had  contracted  with  the  proprie- 
tor of  a  theatre  to  write  a  play 
to  be  perfor/ned  at  the  latter's 
theatre,  the  author  was  the 
owner  of  the  copyright. 

"By  this  agreement  Stewart 
(proprietor)  acquired  no  right  or 
interest  in  the  play  to  be  written, 
except  the  privilege  of  having  it 
performed  at  his  theatre.  All 
other  rights  were  retained  by 
the  author." 

In  Eaton  v.  Lake  (Eng.)  (1888), 
59  L.  T.  100;  57  L.  J.  ((J.  B.)  227, 
a  music  conductor,  while  in  the 
employ  of  defendant  for  a  term 
of  years,  had  composed  special 
music  for  tlie  Christmas  holidays. 


RELATIONSHIP   OF   EMPLOYER   AXD    EMPLOYE 


31 


among  other  things,  compile  and  prepare  instruction  and 
question  papers,  it  was  held  that  the  literary  works  of 

representation  can  become  vested 
ab  initio  in  an  employer  other 
than  tlie  person  who  has  actually 


wliich  was  performed.  The  dc- 
ferulant  gave  plaintfT  a  week's 
notice  to  quit,  and  then  took  with 
him  the  score  of  the  music  and 
subseciuently  gave  performances 
of  the  same.  Held,  lial)le,  as  the 
music  was  the  iiulcpcndcnt  com- 
position of  the  plaintiff  and  be- 
longed to  him. 

See  also:  Shepherd  v.  Conquest 
(Eng.)  (185G),  17  C.  B.  427;  25  L. 
J.  C.  P.  127;  2  Jur.  N.  S.  236;  4 
W.  R.  283. 

In  this  case  an  author  was  en- 
gaged by  the  owner  of  a  theatre 
to  write  a  dramatic  composition 
and  he  received  therefor  a  speci- 
fied weekly  salary  and  travelling 
expenses.  The  action  was  brought 
by  the  proprietor  of  the  theatre 
for  damages  for  infringement  of 
the  play. 

"The  question  is  whether  the 
plaintiffs  by  the  transaction  be- 
tween them  and  Courtney  (the 
writer)  became  entitled  to  the 
sole  right  of  representation  of 
this  piece  in  London,  so  as  to 
be  able  to  maintain  the  action. 
We  do  not  think  it  necessary  in 
the  present  case  to  express  an>' 
opinion  whether  under  any  cir- 
cumstances, the  copyright  in  a 
literary    work    or    the    right    of 


composed  or  adapted  the  literary 
work.  It  is  enough  to  say  in  the 
present  case  that  no  such  effect 
can  be  produced  where  the  em- 
ployer merely  suggests  the  subject 
and  has  no  .share  in  the  design  or 
execution  of  the  work,  the  whole 
of  which,  so  far  as  anj'  character 
of  originality  belongs  to  it,  flows 
from  the  mind  of  the  person 
employed.  It  appears  to  us  an 
abuse  of  terms  to  .say,  that  in 
such  a  case,  the  employer  is  the 
author  of  a  work  to  which  his 
mind  has  not  contributed  an 
idea,  and  it  is  upon  the  author 
in  the  first  instance  that  the  right 
is  conferred  by  the  statute  which 
creates  it.  We  cannot  bring'  our 
minds  to  any  other  conclusion 
than  that  Courtnej-,  the  person 
who  actually  made  the  adapta- 
tion, though  at  the  suggestion 
of  the  plaintiffs,  acquired  for 
himself,  as  tiie  author  of  the 
adaptation,  and,  so  far  as  that 
adaptation  gives  any  new  charac- 
ter to  the  work,  the  statutory 
riglit  of  representing  it;  and  that 
inasmuch  as  the  plaintiffs  have 
no  assignment  in  writing  of  that 


32 


THE    LAW   OF   MOTION    PICTURES 


the  writer  belonged  absolutely  to  the  employer,  the  eon- 
tract  of  employment  being  silent  in  whom  the  hterary 
property  was  to  vest.^^ 

Where  an  author  is  engaged  by  a  motion  picture  pro- 
ducer at  a  weekly,  monthly,  or  yearly  salary  and  the 
author  agrees  to  furnish  literary  work  as  required  by  the 
producer,  the  relationship  of  master  and  servant  is  created, 
and  the  literary  property  belongs  absolutely  to  the  pro- 
ducer unless  by  express  contract  the  parties  thereto  have 
agreed  to  the  contrary.  •^^  Even  where  the  author  receives 
in  addition  to  the  fixed  compensation  a  share  of  the 
profits  the  rule  is  the  same.'*^   The  same  is  true  as  well 


right,   they    cannot   sue   for   an 
infringement  of  it." 

'"  Colliery  Engineer  Co.  v. 
United  Correspondence  Schools  Co. 
(1899),  94  Fed.  (C.  C.)  152.  "It 
seems  equally  clear  that  under 
his  contract,  which  made  it 
Ewald's  duty  while  a  salaried 
emploj'^e  of  complainant,  inter 
alia,  to  compile,  prepare  and 
revise  the  instruction  and  ques- 
tion papers,  the  literary  product 
of  such  work  became  the  property 
of  the  complainant,  which  it  was 
entitled  to  copyright,  and  which, 
when  copyrighted  lOwald  would 
have  no  more  right  than  any 
stranger  to  copy  or  reproduce." 
See  also:  Schumacher  v.  Schwencke 
(1885),  25  Fed.  (C.  C.)  400; 
Frowde  v.  Parish  (Can.)  (1890), 
27  Ont.  526;  Nisbet  v.  Golf  Agency 


(Eng.)  (1907),  23  T.  L.  R.  370; 
Chantrey,  Chantrey  &  Co.  v. 
Dey  (Eng.)  (1912),  28  T.  L.  R. 
499. 

^°  Bleistein  v.  Donaldson  Liih. 
Co.  (1903),  188  U.  S.  239;  23 
Sup.  Ct.  298.  Holmes,  J.: 
"There  was  evidence  warrant- 
ing the  inference  that  the  designs 
belonged  to  the  plaintiffs,  they 
having  been  produced  by  persons 
employed  and  paid  l)y  the  plain- 
tiffs in  their  establishment  to 
make  those  very  things.  Gill  v. 
United  States  (1896),  160  U.  S. 
426;  16  Sup.  Ct.  322;  Colliery 
Engineer  Co.  v.  United  Corresp. 
Schools  Co.  (1899),  94  Fed. 
(C.  C.)  152;  Carle  v.  Evans 
(1880),  27  Fed.  (C.  C.)  801." 

'' Mallory  v.  Mnckaye  (1898), 
86  Fed.  (C.  C.)  122. 


RELATIONSHIP   OF   EMPLOYER   AND    EMPLOYE 


33 


when  the  author's  compensation  is  based  not  upon  time, 
but  upon  the  (luantity  of  the  work  i)roduced,  as,  for 
instance,  where  he  is  paid  a  specified  amount  per 
I)ap;e.'- 
r  ^^  Where  the  relationship  is  one  of  master  and  servant, 
and  the  author  has  not  expressly  reserved  any  rights,  all 
the  literary  products  belong  to  the  producer  as  soon  as 
they  coq;ie  into  existence.  If  the  writer  should  surrepti- 
tiously sell  the  work  to  some  third  party  the  producer  is 
not  deprived  of  such  work,  but  may,  on  the  contrary 
make  use  of  the  same  and  treat  it  as  his  own  property 
in  every  respect.  ^^ 


«Co.c  V.  Cojc  (Eng.)  (1853), 
1  Kq.  Hop.  94;  11  Ilaiv,  118. 

«  T.  H.  Harms  v.  Slcni  (1915), 
222  Fed.  (D.  C.)  581;  aff'd  231 
Fed.  (C.  C.  A.)  645.  Defendants 
agreed  with  one  Romljcrg,  a  com- 
poser, by  which  he  vested  in  thcin 
the  exclusive  pubUsliing  rights  to 
his  music  for  a  term  of  years,  and 
they  agreed  to  do  certain  things 
for  him.  Subsequently  he  re- 
pudiated his  contract,  and 
plaintiffs  claiming  title  to  a  song 
"Oh,  Those  Days,"  composed 
by  Romberg  subsequent  to  his 
agreement  with  defendants, 
sought  to  enjoin  defendants  from 
pul)lishing  it. 

Judge  Learned  Hand  held 
that  the  contract  Ix'tween  Rom- 
berg and  defendants,  while  not 


enforcible  in  equity,  was  valid  at 
law,  and  that  since  defendants 
could  under  that  contract  obtain 
copyright  of  the  song,  even 
though  the  song  was  not  in 
existence  at  the  time  of  the 
making  of  the  contract,  the 
agreement  operated  as  an  execu- 
tory contract  to  assign  the  copy- 
right; that  plaintiffs  having  taken 
with  notice  of  the  agreement 
were  not  entitled  to  injunction. 

Ward  Lock  &  Co.  v.  Long 
(Eng.)  (1906),  75  L.  J.  Ch.  732; 
2  Ch.  550;  95  L.  T.  345;  22  T.  L. 
R.  798.  It  was  here  hold  that 
an  author  could  assign  the  copy- 
right of  a  book  not  yet  in  existence 
and  such  an  a.ssignmcnt  might 
be  in  the  form  of  an  agreement 
to  assign. 


34 


THE    LAW   OF   MOTION   PICTURES 


But  a  distinction  must  be  carefully  drawn  between 
works  created  as  an  express  part  of  the  employment  or 
as  an  incident  to  it  and  compositions  made  from  informa- 
tion and  knowledge  acquired  in  the  course  of  employment. 
In  the  former  case  the  work  belongs  to  the  master,  as 
has  akeady  been  stated;  but  in  the  latter,  it  has  been 
held  that  such  literary  property  belongs  to  the  author.  ^^^ 
After  leaving  the  employ  of  the  producer  he  may  develop 
the  ideas  which  he  has  conceived  during  his  employment. 
He  may  even  go  to  the  same  original  sources  of  informa- 
tion, and  may  make  use  in  developing  his  work  of  what- 
ever peculiar  experience  he  may  have  acquired  because 
of  his  former  employment. '^'^ 


**  Peters  v.  Borst  (1889) ,  9  N.  Y. 
Supp.  7S9;  reversed  in  U2  N.  Y. 
62;  36  N.  E.  814,  upon  another 
ground. 

The  fact  that  one  while  in  the 
employ  of  another  composes  a 
work  from  information  and  knowl- 
edge acquired  in  the  course  of  his 
employment  docs  not  entitle  the 
employer  to  the  literary  property 
unless  there  is  an  express  agree- 
ment to  that  effect. 

In  Colliery  Engineer  Co.  v. 
United  Corresp.  Schools  Co.  (1899) , 
94  Fed.  (C.  C.)  152,  it  was  said: 
"Besides,  it  is  thouf^ht  that, 
although  Ewald  was  not  at  lil)- 
crty  to  reproduce  sucli  of  his 
work  as  had  heen  copyrighted 
by   the  employers   f(jr   whom   it 


was  prepared,  even  by  availing 
of  his  recollection  of  the  contents 
of  the  copyrighted  pamphlets, 
he  was  not  debarred,  after  his 
contract  terminated,  from  mak- 
ing a  new  compilation,  nor  from 
using  tlie  same  original  sources 
of  information,  nor  from  availing 
of  such  information  as  to  the 
needs  of  students  and  the  best 
methods  of  getting  in  mental 
touch  with  them  as  he  may  have 
acquired  while  superintending 
complainant's   school." 

■'^'Colliery  Engineer  Co.  v. 
United  Corresp.  Schools  (1899), 
94  Fed.  (C.  C.)  152.  See  part 
of  opinion  quoted  on  this  page 
under  footnote  44. 


WHERE  MATERIAL  WRITTEN'  BY  MORE  THAN  ONE  PERSON    35 

Section  9. — Where  the  motion  picture  material  has  been 
written  by  more  than  one  person. 

Motion  picture  producers  have  frequently  found  them- 
selves involved  in  disputes  because  they  have  purchased 
from  an  autlior  the  motion  picture  rights  to  a  play  or 
other  work  believing,  in  good  faith,  that  the  author  was 
the  sole  owner  of  such  rights,  when  in  fact  two  or  three 
men  had  collaborated  in  its  writing.  Those,  who  have 
not  granted  rights,  come  in  and  claim  their  share  of 
the  profits  or  proceeds,  or  seek  an  injunction  upon  the 
ground  that  the  right  granted  by  their  co-author  will 
destroy  their  interest  in  the  common  work. 

The  motion  picture  producer  is  bound  to  pay  all  the 
royalties  to  the  party  with  whom  he  has  contracted.  If 
he  ignores  the  rights  of  the  other  collaborators,  they 
thi'eaten  to  enjoin  the  picture  or  sue  for  damages.  If  he 
recognizes  their  rights  the  person  with  whom  he  has  con- 
tracted threatens  to  bring  an  action  for  breach  of  con- 
tract. Hence,  to  properly  safeguard  his  own  interest,  he 
must  fu'st  inquire  whether  or  not  those  claiming  to  be 
collaborators  of  the  party  with  whom  he  contracted  are 
such  in  fact. 

The  question  as  to  w'hat  constitutes  co-authorship  has 
been  constantly  before  the  courts  of  this  country  and 
England.  The  test  as  laid  down  by  Copinger  contains 
all  the  elements  which  stamp  a  work  as  the  product  of 
co-authorship.  "  If  there  be  a  joint  co-operation  in  carry- 
ing out  the  same  design,  it  is  not  essential  that  the  execu- 
tion of  the  design  shall  be  equally  divided.  Having  agreed 
to  a  general  design  and  structure,  they  may  divide  their 
parts  and  work  separately.    The  pith  of  the  joint  author- 


36 


THE    LAW   OF   MOTION   PICTURES 


ship  consists  of  the  co-operation  in  a  common  design, 
and  whether  this  co-operation  takes  place  subsequently 
to  the  formation  of  the  design  by  the  one,  and  is  varied 
in  conformity  with  the  suggestions  or  views  of  the  other, 
it  has  equally  the  effect  of  creating  a  joint  authorship  as 
if  the  original  design  had  been  their  joint  conception.""® 

*^  Copinger's  Law  of  Copyright 
(4th  Edition),  pages  109,  110. 

A  leading  EngUsh  case  decided 
in  1871,  Levy  v.  Ruthj,  L.  R. 
6  C.  P.  523,  gives  a  number  of 
tests  which  may  be  apphed  with 
practical  results  in  determining 
this  question  at  page  529 : 

"If  two  persons  undertake 
jointly  to  write  a  play,  agreeing 
on  the  general  outline  and  design 
and  sharing  the  labor  of  working 
it  out,  each  would  bo  contribut- 
ing to  the  whole  production  and 
they  might  be  said  to  be  joint 
authors  of  it,  but  to  constitute  a 
joint  authorship  there  must  be 
a  common  design."  And  again 
at  page  530: 

"But  I  take  it  that  if  two  per- 
sons agree  to  write  a  piece,  there 
being  an  original  joint  design 
and  the  co-operation  of  the  two 
in  carrying  out  that  joint  design, 
there  can  be  no  didiculty  in 
saying  they  are  joint  authors  of 
the  work  though  one  may  do  a 
larger  share  than  the  other." 

This  case  has  been  cited  with 


approval  and  followed  in  the 
state  and  federal  courts  of  this 
country. 

The  latest  decision  defining 
what  constitutes  co-authorship  is 
Maurel  v.  Smith  (1915),  220  Fed. 
(D.  C.)  195. 

It  was  held  that  the  plaintiff 
who  wrote  the  scenario,  the  de- 
fendant Harry  B.  Smith  who 
composed  the  libretto  and  the 
defendant  Robert  B.  Smith  who 
composed  the  lyrics  of  an  operetta 
were  co-authors. 

Tree  v.  Boivkett  (Eng.)  (1896), 
77  L.  T.  77.  It  was  held  in  this 
case  that  the  adaptor  of  a  play 
who  introduced  into  his  version 
material  alteration  was  an  "au- 
thor of  a  dramatic  piece"  within 
the  dramatic  Copyright  Act  of 
1833. 

For  cases  where  a  co-worker 
was  held  not  to  be  a  co-author 
see:  Peters  v.  Bnrf<t  (1889),  9 
N.  Y.  Supp.  789;  rovorscd  in  142 
N.  Y.  62;  36  N.  K.  814,  upon  an- 
other ground. 

Where   a  professor   for   tliirty 


WHERE  MATERIAL  WRITTEN  BY  MORE  THAN  ONT:  PERSON    37 


In  case  of  collaboration,  where  there  is  no  express 
agreement  to  the  contrary,  the  authors  become  tenants 
in  common  of  the  work.'' 

A  tenant  in  common  of  hterary  property  may  grant  a 
license  to  ro]:)i"()(Iuce  the  common  work  in  motion  pictures 
without  secui'ing  the  consent  of  his  co-tenant.''^   He  can- 


years  had  been  engaged  in  com- 
piling a  work  and  had  called  in  a 
student  to  help  him  tabulate 
tlie  same,  the  hterary  product 
was  held  in  that  case  to  belong 
wholly  to  the  professor  in  the  ab- 
sence of  an  agreement  between 
them,  although  the  student  had 
placed  considcral)lc  labor  upon 
the  work.  Shepherd  v.  Conquest 
(Eng.)  (1856),  17  C.  B.  427;  25 
L.  J.  C.  P.  127;  4  W.  R.  283;  2 
Jur.  (X.  S.)  236;  Lery  v.  Rutlcij 
(Eng.)  (1871),  40  L.  J.  C.  P.  244; 
L.  R.  C.  C.  P.  523;24L.  T.  621; 
19  W.  R.  976. 

*' On  this  proposition  sec: 
Carter  v.  Bailey  (1874),  64  Me. 
458;  Trade  Auxiliary  Co.  v. 
Middlesborough  T.  P.  Ass'n 
(Eng.)  (1888),  58  L.  J.  Ch. 
203;  40  Ch.  D.  425;  60  L. 
T.  681;  37  W.  R.  337.  Three 
proprietors  of  three  periodicals 
employed  one  to  make  cer- 
tain compihitions  for  thom. 

Held  tliat  eacli  proprietor  of 
each  periodical  had  an  equal  in- 
terest in  the  copyriglit.    See  also: 


Powell  V.  Ileail  (Eng.)  (1879), 
12  Ch.  D.  686,  where  it  was 
held  that  registered  owners  of  a 
copyright  took  as  tenants  in 
common. 

Barelay  v.  Barclay  (1015),  155 
N.  Y.  Supp.  221;  aff'd  162' A.  D. 
(N.  Y.)  557;  156  N.  Y.  Supp. 
1 1 14.  See  this  ca.se  for  a  valuable 
discussion  of  rights  of  tenants  in 
common  of  copyrights,  trade- 
marks, etc.,  where  they  are  made 
use  of  in  a  going  business. 

On  the  question  whether  tlie  col- 
laborators are  co-partners  or  joint 
venturers,  Pitts  v.  Hall  (1854), 
3  Bhxtchf.  201;  also  discussion 
and  cases  cited  in  Section   10. 

*»  Nillson  V.  Lawrence  (1912), 
148  (N.  Y.)  A.  D.  678;  133  N.  Y. 
Supp.  293:  "It  is  settled  that 
with  regard  to  property  of  this 
nature  (a  play),  one  tenant  in 
common  has  as  good  a  right  to 
use  it,  or  to  license  third  persons 
to  use  it  as  has  the  other  tenant 
in  common,  and  neither  can  come 
into  a  court  of  equity  and  su^ert 
a  superior  right  unless  it  has  been 


38 


THE    LAW   OF   MOTION   PICTUEES 


not,  however,  grant  an  exclusive  right,  as  each  has  as 
good  a  right  as  the  other  to  make  use  of  the  common  prop- 


created  bj^  some  contract  modify- 
ing the  rights  which  belong  to 
the  tenants  in  common  as  such. 
[De  Witt  V.  Elmira  Nobles  Mfg. 
Co.  (1876),  66  N.  Y.  459;  Clum  v. 
Brewer  (1855),  2  Curt.  506.]" 

It  was  held  in  this  case,  as  well, 
that  the  complaint  was  bad  be- 
cause it  did  not  allege  that  the 
defendant  had  not  received  a 
license  from  any  co-owTier.  That 
allegation  is  essential  when  there 
is  more  than  one  O'wner. 

Clum  V.  Brewer  (1855),  2 
Curtis  C.  C.  506.  "One  tenant 
in  common  has  as  good  right  to 
use  and  to  license  third  parties 
to  use  the  thing  patented,  as  the 
other  tenant  in  common  has. 
Neither  can  come  into  a  court 
of  equity  and  assert  a  superior 
equity,  unless  it  has  been  created 
by  some  contract  modifying  the 
rights  which  belong  to  them,  as 
tenants  in  common." 

Pusey  V.  Miller  (1894),  61 
Fed.  (C.  C.)  401.  In  this  case 
where  a  patent  was  o\vned  by 
several  parties  the  court  held: 

"Where  a  patent  belongs  to 
several  persons  in  common,  each 
co-owner  can  assign  his  share, 
and  sue  for  an  infringemont,  and 
can  aLso  work  the  patent  himself. 


give  licenses  to  work  it,  and  sue 
for  royalties  payable  to  him  for 
its  use,  and  is  entitled  to  retain 
for  his  own  benefit,  whatever 
profit  he  may  derive  from  the 
working,  although  he  may  be 
liable  to  account  for  what  he 
receives  in  respect  of  the  licenses. 
1  Lindley  Partn.  62;  Sheehan  v. 
Railroad  Co.  (Eng.),  16  Ch.  Div. 
59;  Mathers  v.  Green  (Eng.),  L.  R. 
1  Ch.  App.  29;  Clum  v.  Brewer 
(1855),  2  Curt.  506;  Fed.  Cas.  No. 
2909;  Curran  v.  Burdsall  (1883), 
20  Fed.  (D.  C.)  837;  Aspinwall 
Manufacturing  Co.  v.  Gill  (1887) , 
32  Fed.  (C.  C.)  697;  De  Witt  v. 
Manufacturing  Co.  (1876),  66 
N.  Y.  462;  Gates  v.  Eraser, 
9  111.  App.  628;  Hall,  Pat.  Est. 
75." 

Blackledge  v.  Weir  (1901),  108 
Fed.  (C.  C.  A.)  71.  This'  case 
gives  a  careful  review  of  the 
American  and  English  cases  on 
the  sul)ject  and  reaches  the  same 
conclusion  as  the  above  cases. 

Wood,  C.  J.,  said:  "On  prin- 
ciple, therefore,  there  can  be  no 
accountal)ility  on  the  part  of  a 
part  owner  of  an  invention  to 
other  owners  for  profits  made 
by  the  exorcise  of  his  individual 
right,  whether  it  be  in  the  manu- 


WHERE  MATERIAL  WRITTEN  BY  MORE  THAN  ONE  PERSON    39 


erty.'^  Unless,  therefore,  all  the  co-owners  join  in  the 
grant  of  the  motion  picture  rights,  no  exclusive  rights 
can  be  secured.  As  a  practical  matter  it  is,  for  that 
reason,  advisable  to  secure  a  grant  from  all  claim- 
ing an  interest  in  the  motion  picture  rights  in  the 
work. 


facture  unci  sale  or  by  granting 
to  others  licenses,  or  by  assigning 
interests  in  tlio  patent.  .  .  .  The 
separate  rights  of  tlic  other 
owners  remain  unaffected.  They 
are  cciually  free  to  use  the  inven- 
tion in  all  l(>gitimate  ways  for 
their  individual  profit.  .  .  .  La- 
lance  &  Grosjean  Mfg.  Co.  v. 
Nafl  Enameling  &  Stamping  Co. 
(1901),  108  Fed.  (C.  C.)  77, 
follows  Blacklcdge  v.  ireiV. 

Herbert  v.  FieUs  (1915),  152 
N.  Y.  Supp.  487.  Plaintiff  sought 
to  enjoin  the  production  in  mo- 
tion pictures  of  a  play  entitled 
"Old  Dutch."  The  libretto  had 
been  written  by  Smith,  the  lyrics 
by  Ilobart  and  the  music  by 
Herbert.  The  defendants  Smith 
and  Fields  licensed  a  motion  pic- 
ture reproduction  of  the  libretto, 
Herbert's  consent  not  having 
been  secured.  Held  that  consent 
of  Herbert  was  unnecessary. 

See  also:  De  Wilt  v.  Elmira 
Nobles  Mfg.  Co.  (1876),  66  N.  Y. 
459;  Klein  v.  Beach  (1910),  232 
Fed.  (D.  C.)  240;  aff'd  239  Fed. 


(C.  C.  A.)  108;  Dunham  v.  The 
Indianapolis  h\  R.  Co.  (1876), 
7  IJissell,  223. 

But  see:  Powell  v.  Head  (Eng.) 
(1879),  48  L.  J.  Ch.  731;  12  Ch.  D. 
686;  41  L.  T.  70.  The  part  owner 
of  a  dramatic  entertainment  was 
here  held  to  be  unable  to  grant  a 
license  for  its  representation  with- 
out the  consent  of  all  the  other 
owners.  Accordingly  where  the 
registered  owner  of  an  undivided 
part  of  the  copyright  of  an  opera 
alone  granted  a  license  for  its 
representation,  in  an  action  by 
the  other  owners  to  recover  a 
penalty  under  3  &  4  Will.  4,  c.  15, 
s.  2:  Held,  that  having  regard  to 
that  act  and  the  act  5  &  6  Vict, 
c.  45,  the  license  was  illegally 
granted,  and  that  the  defendant 
was  liable  to  pay  to  the  plain- 
tiffs one-half  of  the  penalty  fixed 
by  the  statute  for  each  represen- 
tation. 

*">  Nillson  V.  Laurence  (1912), 
148  (N.  Y.)  A.  D.  678;  133  N.  Y. 
Supp.  293;  Herbert  v.  Fields 
(1915),  152  N.  Y.  Supp.  487. 


40 


THE   LAW   OF  MOTION   PICTURES 


This  is  subject  to  the  further  hmitation  that  such 
grant  does  not  injure  or  destroy  the  mterest  of  the  co- 
owner  or  co-owners  in  the  common  property.  ^°  Where 
the  motion  picture  reproduction  is  of  the  same  high  stand- 
ing and  quahty  as  the  work  itself,  it  will  not  ordinarily 
be  regarded  as  injurious  to  or  destructive  of  the  original 
work,  nor  will  the  granting  of  such  rights  amount  to  an 
impairment  of  the  co-tenant's  interest  in  the  common 
property.  •■''^ 

Where,  however,  a  co-owner  permits  the  making  of  an 
insignificant  reproduction,  with  a  poor  cast,  of  a  high- 
class  drama  or  novel,  equity  will,  in  such  cases,  intervene 

^^Osborn  v.  Schenck  (1880),  83 
N.  Y.  200.  In  discussing  the 
question  whether  an  owner  in 
common  of  a  chattel  has  a  remedy 
against  the  other  co-owner  upon 
a  destruction  by  such  other  co- 
owner  of  the  common  property, 
Finch,  J.,  said:  "If  that  posses- 
sion develops  into  a  destruction 
of  the  property  or  the  interest  of 
the  co-tenant,  or  into  such  a 
hostile  appropriation  of  it  as 
excludes  the  possibility  of  bene- 
ficial enjoyment  by  him  or  ends 
in  a  sale  of  the  whole  property 
which  ignores  and  denies  any 
other  right,  then  a  conversion 
is  established  and  trover  may  be 
maintained  against  the  wrong- 
doer." The  court  then  quotes  in 
support  of  this  proposition:  White 
V.  (hborn  (18:J9),  21  Wend.  (N. 


Y.)  72;  Tyler  v.  Taylor  (1850),  8 
Barb.  (N.  Y.)  585;  Van  Doren  v. 
Baity  (1877),  11  Hun  (N.  Y.), 
239;  Delaney  v.  Root,  99  Mass. 
547;  Wheeler  v.  Wheeler  (1851), 
33  Me.  347;  Dyckman  v.  Valiente 
(1870),42N.  Y.  549. 

'^Herbert  v.  Fields  (1915),  152 
N.  Y.  Supp.  487.  "Plaintiff 
urges  that  the  production  of  the 
moving  pictures  to  large  crowds 
at  low  prices  of  admission  'de- 
stroys '  the  work.  While  the  ques- 
tion whether  the  moving  picture 
production  detracts  from  or  adds 
to  its  value  as  a  musical  comedy 
may  be  debatable,  it  seems  per- 
fectly clear  that  any  analogy 
sought  to  be  derived  from  the 
total  physical  destruction  of  an 
article  owned  in  common  is 
utterly  inapplicable." 


WHERE  MATERIAL  WRITTEN  BY  MORE  THAN  ONE  PERSON   41 


on  behalf  of  the  co-tenants  and  enjoin  the  reproduction 
of  the  common  work.'- 

One  of  two  or  more  co-authors  may  sell  or  assign  his 
own  share  or  right  in  the  common  work.^' 

With  respect  to  the  co-authors  themselves,  the  law  has 
not  l)een  dofmitoly  settled  whether  one  must  account  to 
the  other  for  his  share  of  the  profits.  The  rule  seems  to 
be  that  each  may  retain  whatever  moneys  he  may  have 
secured  from  the  exploitation  of  the  motion  picture  rights 
of  the  work  without  accounting  for  any  part  thereof  to 
his  co-authors,-''  unless  by  contract  the  co-authors  have 
agreed  to  the  contrary. 


"//er/ie  v.  Liebler  (1902),  73 
(N.  Y.)  A.  D.  194;  Osborne  v. 
SchcJick  (1880),  83  N.  Y.  200. 

•-^May  V.  Chaffee  (1871),  2 
Dillon  C.  C.  385. 

'*  Carter  v.  Bailey  (1874),  64 
Me.  458.  "In  the  absence  of 
any  contract  modifying  their 
relations,  copyright  i)r()prietors 
are  simply  owners  in  common 
.  .  .  each  owning  a  distinct  but 
undivided  part  which  or  any 
part  of  which  alone  he  can  sell, 
as  in  the  case  of  personal  chat- 
tels." 

"The  statute  confers  upon  all 
the  owners  full  power,  without 
exacting  any  obligation  in  return 
to  jirint,  publish  and  sell.  .  .  . 
Each  can  exercise  his  own  right 
alone  without  using,  or  receiving 
any  aid  or  benefit  whatever  from 


the  title  or  property  of  the  other. 
But  if  none  be  allowed  to  enjoy 
his  legal  interest  without  the 
con.scnt  of  all,  then  one,  by  with- 
holding his  consent,  might  prac- 
tically destroy  the  value  of  the 
whole  use.  And  a  use  only  upon 
condition  of  an  accounting  for 
profits,  would  compel  a  disuse, 
or  a  risk  of  skill,  capital  and  time 
with  no  right  to  call  for  a  sharing 
of  possible  losses.  When  one 
owner  by  exercising  a  right  ex- 
pressly conferred  upon  him,  in 
nowise  uses  or  molests  the  right, 
title,  possession  or  estate  of  his 
co-owners,  or  hinders  them  from  a 
full  enjoyment  or  sale  and  trans- 
f(>r  of  their  whole  property,  we 
fail  to  perceive  any  {principle  of 
equity  whicli  would  require  liiin 
to  account  therefor.     If  owners 


42 


THE   LAW  OF  MOTION   PICTURES 


This  is  of  great  importance  to  the  motion  picture  pro- 
ducer who  has  secured  a  Ucense  from  only  one  of  the  co- 
authors. In  such  case,  assuming  that  the  co-authors 
have  some  agreement  between  themselves  respecting  the 
division  of  moneys  secured  from  the  exploitation  of  the 
work,  the  remedy  of  one  co-author  is  against  the  other; 
and  while  he  may  compel  the  other  to  account,  he  may 
not  compel  the  licensee  to  account  to  him.  In  other 
words,  the  motion  picture  producer  is  accountable  only 


of  such  property  would  have  the 
result  otherwise,  they  must  bring 
it  about  by  contract."  If  he 
takes  "more  than  his  share  of  the 
rents  and  income,  without  the 
consent  of  his  co-owners,"  and 
refuses  "in  a  reasonable  time 
after  demand,  to  pay  such  co- 
tenants  their  share  thereof  .  .  . 
he  will  be  liable  to  an  action  of 
special  assumpsit." 

Drake  v.  Hall  (1911),  220 
Fed.  (C.  C.  A.)  905.  Letters 
patent  were  issued  to  both  par- 
tics  to  the  suit  as  joint  patentees. 
"Under  such  grant  the  rule  is 
elementary  that  each  of  these 
patentees  was  vested  with  an 
undivided  half  interest  therein, 
creating  the  relation  between 
them  of  cotcnants  for  all  benefits 
of  the  ci'^nt,  so  that  each  became 
entitled  to  use  thereof  without 
accountability  to  the  other  co- 
tenant.    No  relation  of  copartner- 


ship is  involved  in  such  owner- 
ship. ..."  To  the  same  effect, 
Central  Brass  v.  Sluber  (1915), 
220  Fed.  (C.  C.  A.)  909;  Puscy  v. 
Miller  (1894),  61  Fed.  (C.  C.) 
401;  Cliim  v.  Breiver  (1855),  2 
Curtis  C.  C.  506;  Nillson  v. 
Lawrence  (1912),  148  (N.  Y.) 
A.  D.  678;  133  N.  Y.  Supp.  293; 
Blackledge  v.  Weir  (1901),  108 
Fed.  (C.  C.  A.)  71;  Lala^ice 
&  Grosjean  Mfg.  Co.  v.  Nat'l 
Enameling  &  Stamping  Co.  (1901), 
108  Fed.  (C.  C.)  77.  But  see 
Klein  v.  Beach  (1916),  232  Fed. 
(D.  C.)  240;  aff'd  (1917)  239  Fed. 
(C.  C.  A.)  108.  "Here  both 
Beach  and  Klein  became  the 
owners  of  Klein's  drama  and 
each  could  then  do  with  it  what 
he  pleased,  with  the  duty  of  ac- 
counting over.  .  .  .  But  in  all 
these  instances  one  would  be 
obliged  to  account  to  the  au- 
thor." 


WHERE  MATERIAL  WRITTEN  RY  MORE  THAN  ONE  PERRON    43 


to  his  licensor.  •'•'  Nor  is  the  Hccnsee  of  one  (;f  tlie  co- 
authors a  proper  party  to  an  action  brought  })y  one  co- 
author against  the  other,-'"^     It  has  also  been  held  that 


"'^Pusey  V.  Miller  (1894),  61 
Fed.  (C.  C.)  401.  "lu  Dunham 
V.  Railroad  Co.,  2  Ban.  &  A.  327, 
7  Biss.  223,  Fed.  Ca.s.  No.  4151, 
it  was  said  by  Judso  Drummond 
that,  where  a  party  owning  less 
than  the  whole  of  the  thing 
patented  makes  a  grant  or  license 
uiuler  the  patent,  it  would  seem 
tlie  better  rule  to  hold,  if  there 
is  any  hability  at  all,  that  he 
shall  be  answerable  to  the  others, 
rather  than  the  otlier  patentees 
shall  look  to  the  grantee  or  li- 
censee. In  Curran  v.  Burdsall, 
supra  (20  Fed.  837),  the  court 
held  that,  if  one  of  several  joint 
patentees  assigns  to  a  third  party, 
the  estoppel  upon  the  assignor 
must  work  a  license  to  the  as- 
signee to  use  the  patent,  and  the 
joint  owners  of  the  patent  must 
look  to  the  one  who  assigns,  for 
an  accounting.  The  rule  de- 
ducible  from  the  authorities  would 
seem  to  be  that  the  license  of 
one  or  more  of  several  owners 
in  common  of  a  patent  confers  a 
right  as  against  all,  and  that  the 
remedy  of  the  other  tenants  in 
common,  if  thoy  have  any,  is 
by  a  suit  for  an  account  for  what- 


ever may  have  been  received  by 
them.  In  other  words,  the 
licensee  of  a  patent  held  by  two 
or  more  co-owners  is  liable  to  his 
licensor  only,  and  not  to  the  other 
co-owners,  for  license  fees  or 
royalties,  unless  it  is  otherwise 
stipulated  in  the  license." 

Klein  V.  Beach-  (1916),  232 
Fed.  (D.  C.)  240;  alT'd  239  Fed. 
(C.  C.  A.)  108;  Lalnnce  &  Gros- 
jean  Mfg.  Co.  v.  Nat'l  Enameling 
and  Stamping  Co.  (1901),  108 
Fed.  (C.  C.)  77;  BlacUedge  v. 
Weir  (1901),  108  Fed.  (C.  C.  A.) 
71;  De  Witt  v.  Elmira  Xoblcs 
Mfg.  Co.  (1876),  66  X.  Y.  459. 

^o  Dunham  v.  The  Indianapolis 
R.  R.  Co.  (1876),  7  Bissell,  223. 
"What  is  the  position  of  paten- 
tees with  reference  to  their  right 
to  use  the  thing  patented?  The 
patentees  are  tenants  in  common 
of  the  right.  One  of  them  has 
no  superiority  of  right  over  the 
other.  One  of  them  can  manu- 
facture and  use  tlie  article  pat- 
tentod  without  the  consent  of 
the  others;  that  is,  each  has  the 
same  right,  although  one  may 
own  a  greater  share  of  the, thing 
patciitcd   than   the  other.     The 


44 


THE   LAW   OF  MOTION   PICTURES 


where  one  co-author  sues  the  licensee  of  the  other  co- 
author, the  bill  of  complaint  is  demurrable." 

In  any  action  brought  by  a  co-author  against  a  motion 
picture  producer  for  an  injunction  or  damages  or  both, 
other  than  an  action  brought  by  a  co-author  against  his 
licensee  for  breach  of  the  contract  between  them,  he  must 
join  as  parties  thereto  all  his  co-authors. ^^    Where  one 


grant  was  in  this  case  to  the  three 
to  use  and  vend  the  improved 
car-brake  shoes,  and  while  it  is 
clear  that  one  of  the  patentees 
cannot  grant  what  does  not 
belong  to  him,  and  if  he  gives  a 
license  or  makes  a  contract  for 
the  use  of  the  thing  patented, 
he  can  only  grant  that  which  he 
has  himself,  and  not  the  rights 
of  the  other  patentees,  still  he 
can  clothe  his  grantee  or  his 
licensee  with  the  same  right  that 
he  has  himself,  namely,  the  right 
to  sell  or  use  the  thing  patented. 
And  it  seems  to  mc  the  better 
rule  is  to  hold,  if  there  is  a  lia- 
bility at  all,  that  where  a  party 
owning  less  than  the  whole  of  a 
thing  patented,  makes  a  grant  or 
a  license,  he  shall  be  answerable 
to  the  others,  rather  than  that 
the  other  patentees  shall  look  to 
the  grantee  or  licensee."  Ptisey 
V.  Miller  (1894),  GI  Fed.  (C.  C.) 
401. 

"  Pmey   v.   Miller    (1894),  Gl 
Fed.  (C.  C.)  401. 


^^  Nillson  V.  Lawrence  (1912), 
148  (N.  Y.)  A.  D.  678;  133  N.  Y. 
Supp.  293.  "We  are  also  of  the 
opinion  that  plaintiff's  co-owner 
or  co-owners  should  be  made 
parties  to  the  action.  It  is  plain 
upon  the  face  of  the  complaint 
that  a  complete  determination 
of  the  controversy  cannot  be 
had  in  their  absence." 

Jackson  v.  Moore  (1904),  94 
(N.  Y.)  A.  D.  504;  87  N.  Y. 
Supp.  1101.  "As  a  general  rule 
tenants-in-common  of  personal 
property  must  join  in  bringing 
actions  whether  arising  ex  con- 
tractu or  ex  delicto.  [Hill  v. 
Gibbs,  5  Hil.  (N.  Y.)  56.]"  Aron- 
son  V.  Flcckenstein  (1886),  28 
Fed.  (C.  C.)  75. 

Lauri  v.  Renad  (Rng.)  (1892), 
61  L.  J.  Ch.  580;  (1892),  3  Ch. 
402;  67  L.  T.  275;  40  W.  R.  679. 
It  was  here  held  that  any  one  or 
more  of  tenants  in  common  in  a 
copyright  might  maintain  an 
action  against  a  stranger  for  an 
infringement  of  the  entire  copy- 


NATURE    OF   THE    CONTRACT   OF   CO-AUTHORSHIP        45 


co-author  has  granted  a  Hccnse  and  the  Ucensee  has 
breached  his  contract,  the  hcensor  may  maintain  his 
action  agamst  his  Ucensee  without  joining  the  hcensor's 
co-authors. 

One  co-author  may  maintain  an  action  against  his  co- 
authors for  infringements  of  the  common  property.^^ 

Section  10. — Nature  of  the  contract  of  co-authorship. 

Contracts  between  co-authors,  and  contracts  Ijctween 
the  manager  or  pubhsher  and  the  co-authors  for  the  crea- 


rif^ht.  See  also:  Stevem  v.  Wildy 
(Eng.)  (1850),  19  L.  J.  Ch. 
190. 

In  Tree  v.  Bawkett  (Eng.) 
(1896),  77  L.  T.  77,  tlie  question 
is  discussed  wlietlier  a  licensee 
must  be  made  a  party  to  an 
action  brought  against  an  in- 
fringer Ijy  the  co-authors. 

"  Herring  v.  Gas  Consumers' 
Assoc.  (1878),  3  McCrary  C.  C. 
20G.  The  question  here  presented 
was  whether  a  joint  author  of  a 
patent  could  infringe  upon  the 
patent  owned  jointly  without 
being  liable  to  his  co-owner  for 
the  wrong  done.  The  court  held 
that  he  could  not.  The  court 
sa.vs:  "Can  a  part  owner  infringe 
the  common  patent  and  escape 
all  liability?  If  he  can  it  is  ob- 
vious that,  however  small  his 
aliquot  part,  he  can  make  the 
enjoyment  of  the  patent  value- 


less to  his  joint  owner.  He  has, 
by  virtue  of  the  joint  ownership, 
a  right  to  use  the  patent,  but  he 
has  no  right,  more  than  a  stranger, 
to  infringe  the  same.  If  there  is 
an  infringement  the  right  of 
recovery  is  in  the  party  wronged. 
All  the  joint  owners  should  or- 
dinarily be  parties  plaintiff,  but 
if  the  wrongdoer  is  one  who  is 
guilty  to  the  damage  of  tlie  other 
joint  owner,  the  other  should 
not  be  left  remediless.  As  to 
such  infringement  they  are 
strangers.  .  .  .  Were  this  not  so, 
the  door  would  be  open  to  the 
gravest  frauds  by  one  joint 
owner  against  all  other  joint 
owners.  See  also:  Pitts  v.  Hall 
(1854),  3  Blatchf.  201,  at  page 
208. 

Cescinsky  v.  Routlcdge  (Eng.) 
(1916),  85  L.  J.  K.  B.  1504;  115 
L.  T.  191. 


46 


THE    LAW   OF   MOTION    PICTURES 


tion  and  production  of  literary  works  are  contracts  for 
personal  services.^"  The  creation  of  a  literary  work  re- 
sembles that  of  a  patentable  invention;*'^  and  since  the 
co-owners  of  the  copyright  as  of  the  patent  are  tenants 
in  common,  there  is  no  partnership  in  the  work,  nor  is 
there  a  joint  venture.^- 

Of  course,  that  relation  may  be  modixled  by  special 
contract,^''  but  any  such  contract  would  have  to  create 


^^Mallonj  V.  Machay  (1899), 
92  Fed.  (C.  C.  A.)  749;  Blakely  v. 
Soma  (1900),  197  Pa.  St.  305;  47 
Atl.  286.     See  also  Section  14. 

^^  Henry  v.  Dick  (1911),  224 
U.  S.  at  page  45;  32  Sup.  Ct.  364; 
Scribner  v.  Slrauss  (1C04),  130 
Fed.  (C.  C.)  389. 

"De  Witt  V.  Elmira  Nobles 
Co.  (1876),  5  Hun,  459;  aff'd 
66  N.  Y.  459.  "These  parties 
are  not  partners  in  the  owner- 
ship of  this  patent.  Beyond 
doubt  they  are  tenants  in  com- 
mon each  owning  the  undivided 
half." 

Pitls  V.  Hall  (1854),  3  Blatch. 
201.  "In  the  case  of  joint  pat- 
entees, where  no  agreement  of 
partnership  exists,  the  relation 
of  co-partners  certainly  docs  not 
result  from  their  connection  as 
joint  patentees;  and  when  one 
joint  owner  of  a  patent  transfers 
his  uiidivid(!<l  interest  to  a  stran- 
f^cr,  the  assignee  docs  not  become 


the  partner  of  his  co-proprietor. 
In  both  cases  the  parties  in- 
terested in  the  patent  are  simply 
joint  owners  or  tenants  in  com- 
mon of  the  rights  and  property 
secured  by  the  patent." 

Robinson  on  Patents,  Sec- 
tion 795. 

"And  it  maj^  be  established  as 
an  accepted  doctrine  that  what- 
ever may  be  their  relation  t;) 
the  monopoly  such  joint  owners 
are  not  co-partners  nor  collective 
owners  of  the  invention.  .  .  ." 

And  we  find  this  rule  enun- 
ciated in  Lindley  on  Partnership 
(6th  Ed.)  at  p.  36: 

"Mutual  rights  of  co-owners 
of  a  copyright  have  not  been 
much  discussed;  l)ut  it  has  been 
decided  that  a  license  to  represent 
a  dramatic  entertainment  grante;! 
by  one  only  of  several  co-owners 
of  the  copyriglit  in  it  does  not 
bind  the  other." 

6»  Pitts  V.  Hall  (1854),  3  Blatcii. 


NATURE    OF   THE    CONTRACT   OF   CO-AUTHORSHIP        47 

the  mutually  reciprocal  obligations  that  are  concomitant 
with  partnersliip.*^'  Where  the  parties  have  by  special 
contract  created  a  co-partnc^rship,  any  cause  which 
operates  to  dissolve  the  partnership  remits  them  once 
more  to  their  rights  as  co-tenants  in  the  common 
work/*' 

Since  death  works  a  dissolution  of  partnerships,  the 
death  of  one  co-author  would  dissolve  any  relation  of 
partnership  or  joint  venture  created  between  them  by 
special  contract. 

Suppose  that,  in  the  absence  of  any  special  contract 
between  them,  one  co-author  dies  before  the  completion 
of  the  work.  "^Tiat  becomes  of  his  rights  to  the  work? 
To  answer  this  one  must  examine  the  nature  of  their 
contract.  "Wlicn  two  men  agree  between  themselves  to 
write  a  play  or  book,  the  law  spells  out  an  imphcd  cove- 

201;      Pankhurst     v.     Kinsman  of  it.  .  .  ."    Baldwin  y.  Burrows 

(1849),   1  Blatch.  488;  Carter  v.  (1872),   47   N.    Y.    199   at   206. 

BaUci/  (1874),  04  Mo.  4G3.  And  see  Smith  v.  Dunn  (1904), 

'^■'Ilqjc    V.     niford    (1S9G),   2  44  (N.  Y.)  Misc.  288;  89  N.  Y. 

A.  D.  (N.  Y.)346;37N.  Y.Supp.  Supp.  881;  and  Stevens  v.  Mc- 

751;  aff'd  154  N.  Y.  757;  49  N.  E.  Kilbin  (1895),  08  Fed.  (C.  C.  A.) 

1098;  Central  City  Sav.  Bank  v.  406,  the  latter  case  giving  a  most 

Walker    (1876),   66   N.   Y.   424;  detailed    and    logical    discussion 

Burnett    v.    Snyder    (1879),    76  of  the  essential  elements  of  part- 

N.  Y.  344;  London  Assura7ice  Co.  nership. 

V.  Drennen  (1886) ,  1 16  U.  S.  461 ;  <^'- Pankhurst  v.  Kinsman  (1849) , 

6  Sup.  Ct.  442.    "To  constitute  a  1  Blatch.  488.    "The  a.'^signment 

partnorshij)  there  must  be  a  re-  (of  the  interest   in   the   partnor- 

ciprocal  agreement  of  the  parties  ship)   worked   a  dissolution   antl 

not  only  to  unite  their  stock,  but  left  the  parties  interested  in  the 

to  share  in  the  risks  of  profit  or  jxitent    simply    to    tlieir    rights 

loss  by  the  disposition  to  be  made  under  it." 


48 


THE    LAW  OF  MOTION   PICTURES 


nant  that  they  will  remain  alive  to  complete  the  work.^^ 
The  contract  is  one  which  involves  elements  of  confidence 
and  skill,  and  each  party  is  entitled  to  the  active  and  con- 
tinued collaboration  of  the  other  up  to  the  completion 
of  the  work.^^  When  death  robs  him  of  that  essential, 
the  contract  is  broken;  it  is  at  an  end.®^  It  cannot  possibly 
survive,  for  obviously  it  cannot  be  carried  out  according 
to  its  terms.  The  surviving  author  is  not  bound  to  con- 
tinue the  work  with  a  substitute  appointed  by  the  per- 
sonal representative  of  the  decedent,  for  no  two  people 
possess  the  same  peculiar  and  valuable  qualities.^^ 


^^Blakehj  v.  Sousa  (1900),  197 
Pa.  St.  305,  at  p.  318;  47  Atl.  286. 
"In  all  contracts  of  this  character 
there  is  written  by  the  law  the 
condition  that  they  are  subject 
to  the  continuance  of  the  hves 
of  the  parties  contracting.  ..." 
See  also:  Taylor  v.  Caldwell 
(Eng.)  (18G3),  3  Best.  &  S.  826; 
Spaulding  v.  Rosa  (1877),  71 
N.  Y.  40;  Baxter  v.  Billings 
(1897),  83  Fed.  (CCA.)  790. 

>'' Spalding  y.  Rosa  (1877),  71 
N.  Y.  40;  Blakehj  v.  Sousa  (1900), 
197  Pa.  St.  305;  47  Atl.  286; 
Sargent  v.  McLeod  (1913),  209 
N.  Y.  360;  103  N.  E.  164;  Baxter 
V.  Billings  (1897),  83  Fed.  (C  C 
A.)  790;  Wolfe  v.  Howes  (1859), 
20  N.  Y.  197. 

<^^Blahely  v.  Sousa  (1900),  197 
Pa.  St.  305;  47  Atl.  286.  "What- 
ever Sousa  may  liavc  done  after 


Blakely's  death  he  did  for  him- 
self. The  term  of  his  employ- 
ment ended  with  the  death  of  his 
employer.  .  .  ."  See  cases  cited 
and  excerpts  in  Section  14, 
page  67,  footnote  6. 

'^Blakely  v.  Soma  (1900),  197 
Pa.  St.  305;  47  Atl.  286.  "It 
would  hardly  be  contended  for  a 
moment  that  if  Sousa  had  dictl 
and  Blakely  had  survived, 
Blakcly  could  have  been  held  t.) 
accept  in  lieu  of  Sousa's  services 
the  services  of  his  legal  represen- 
tatives or  of  anyone  selected  by 
them." 

Dickinson  v.  Callahan  (1852), 
19  Pa.  St.  227,  at  234.  "It 
would  seem  absurd  to  say  that 
the  administrator  of  a  physician 
or  author,  or  a  musician  could 
be  compelled  to  perforin  flieir 
professional  engagements  no  mat- 


NATURE    OF   THE    CONTRACT   OF   CO-AUTHORSHIP       40 


On  the  otlicr  luuul,  he  is  not  bound  to  throw  nwiiy  the 
product  of  their  joint  labor,  nor  divest  himself  of  the 
knowledge  and  skill  acquired  thereby.  He  may  continue 
the  work  to  its  completion  and  license  third  parties  to 
exploit  the  same. 

In  like  manner  the  manager  or  publisher  who  contracts 
with  two  or  more  co-authors  is  entitled  to  the  joint  product 
of  their  labors.  lie  is  not  bound  to  accept  the  work  of 
one,  but  may  insist  on  genuine  collaboration;  and  where 
one  co-author  dies  before  the  completion  of  the  work, 
the  contract  is  at  an  end.™ 


ter  how  the  contract  might  be 
expressed.  The  idea  is  ludi- 
crous." 

'°  Baxter  v.  Billings  (1S97), 
83  Fed.  (C.  C.  A.)  790.  This  was 
a  case  where  a  cUent  retained 
two  attorneys  to  prosecute  some 
litigation;  the  attorneys  were 
partners.  Before  the  work  had 
progressed  at  all,  one  of  the  at- 
torneys, Yonley,  died.  Baxter, 
the  survivor,  was  then  asked  to 
complete  the  work  and  he  did 
so,  bringing  it  to  a  successful 
issue.  He  brought  an  action  for 
his  services,  basing  the  action  on 
his  original  contract.  Demurrer 
was  sustained,  the  Circuit  Court 
holding  that:  "An  agreement 
with  a  lawj'cr  to  commence  and 
prosecute  a  suit  is  of  the  same 
character  as  a  contract  with  an 
author   to   write   a   book.     If  Ifie 


author  dies,  or  abandons  his  work 
when  it  is  half  written,  no  sub- 
stitute or  successor  can  complete 
the  book,  and  recover  its  price, 
because  the  literary  ability  of 
the  original  author  for  the  use 
of  which  the  publisher  con- 
tracted, has  not  been,  and  could 
not  be  applied  to  it.  .  .  .  That 
was  a  contract  for  the  services 
of  both  Baxter  and  Yonley. 
Under  that  agreement  their  au- 
thority to  commence  and  prose- 
cute the  suit  was  a  joint  au- 
thority, and  their  duty  was  a 
joint  duty.  A  joint  authority 
conferred  on  two  persons  can 
onlj'  be  exercised  b}'  the  act  of 
both.  An  obligation  to  furnish 
and  apply  to  tlic  conduct  of  a 
lawsuit  the  learning,  ability  and 
experience  of  tivo  particular  at- 
torneys is  not  performed  by  fur- 


50 


THE    LAW   OF   MOTION    PICTURES 


The  manager  may,  however,  contract  anew  with  the 
surviving  co-author,  and  a  Hcense  so  given  to  him  is 
vahd.'i 

What  remedy  may  be  open  to  the  estate  of  the  deceased 
co-author  where  he  dies  before  the  completion  of  the  work 
is  doubtful.'^-  It  is  well  settled  that  each  co-author  may 
exploit  the  work  to  the  fullest  extent,  and  his  right  to  do 
so  should  not  be  curtailed  because  of  the  other's  death — 


nishing    the    services   0/  one   of 
them.  .  .  ." 

Sargent  v.  McLeod  (1913),  209 
X.  Y.  360;  103  N.  E.  164.  In  a 
similar  case  involving  the  death 
of  an  attorney  the  Court  of  Ap- 
peals said:  "It  is  true  that  the 
cessation  in  performance  was 
caused  by  his  death,  but  it  left 
undone  that  which  he  had  agreed 
to  do  precisely  as  though  it  re- 
sulted from  a  physical  or  mental 
incapacitation  at  that  time,  or 
a  capricious  or  unjustifiable 
abandonment  of  the  case.  .  .  . 
Not  only  was  the  perfor- 
mance which  bound  McLeod 
to  pay  the  stipulated  compensa- 
tion incomplete  at  the  death  of 
the  intestate,  hit  the  death  ahro- 
galed  the  contract ^  See  also: 
Morgan  v.  Roberts  (1865),  38  III. 
65;  Moshier  v.  Kilchdl  (1877), 
87  111.  18;  Wright  v.  McCampbell 
(1890),  75  Texas,  644;  13  S.  W. 
293;     Hartford     Fire     Ins.    Co. 


V.    Wilcox    (1870),   57    111.    180. 

71  Yerrington  v.  Greene  (1863) , 
7  R.  I.  594.  "And  if  he  would 
serve  the  administrators  in  wind- 
ing up  the  estate  it  must  be 
under  a  new  contract  with  them, 
and  under  renewed  powers 
granted  by  them.  ..." 

■'^  Wolfe  V.  //otres,  (1859),  20 
N.  Y.  197.  The  concurring 
opinion  of  Ch.  J.  Johnson  ob- 
served "  that  it  was  material  that 
the  defendants  had  received  ac- 
tual benefits  from  the  services 
of  the  plaintiff's  testator  and 
that  quite  a  different  question 
would  be  presented  by  a  case 
where  the  services  actually  ren- 
dered should  prove  valueless, 
as,  e.  g.,  if  one  shoidd  be  retained 
to  cojnpose  an  original  literary 
work  and  having  faUhfidly  cm- 
ployed  himself  in  preparation 
should  die  without  having  com- 
pleted any  work  of  value  to  llie 
employer." 


WHERE    MUSIC    HAS   BEEN    SPECIALLY    COMPOSED        51 

if  anytliing  they  should  become  greater,  since  the  survivor 
must  of  necessity  do  more  labor  to  complete  the  work. 

Any  rights  which  would  enure  to  the  estate  of  the  de- 
ceased co-author  must  be  determined  by  reservations 
which  have  been  inserted  in  the  contract  of  the  co-authors. 
If  there  are  no  such  reservations,  his  rights  are  prob- 
lematical. 

The  contract  of  co-authorship  is  not  assignable,  nor  is 
the  contract  with  the  publisher  or  manager.  And  being 
non-assignable,  it  will  not  pass  to  a  trustee  in  bank- 
ruptcy.""' It  is  entire  and  indivisible,  and  calls  for  com- 
plete performance  before  any  rights  under  it  are  en- 
forciblo."^ 

Section  11. — Where  music  has  been  composed  specially 
to  accompany  the  exhibition  of  the  motion  picture. 
There  has  been  a  strong  tendency  of  late  to  provide 

''^Griffith   V,    Tower   Pub.    Co.  being  purely  personal.     In  this 

(Eng.)  (1897) ,  75  L.  T.  R.  (N.  S.)  case  the  licensee  was  a  corpora- 

330;  1  Ch.  21;  Hole  v.  Bradbury  tion. 

(Eng.)  (1S79),  41  L.  T.  II.  153;  12  '•»  Mallory  v.  Mackaye  (1889), 

Ch.  I).  SSG;  Stevens  v.  Benning  92  Fed.  (C.  C.  A.)  749,  at  751. 

(Eng.)  (1854),  24  L.  T.  R.  (0.  S.)  "Such  contracts  are  entire,  not 

l'A;lK.andJ.\G9;Rea(tey.Bcnt-  separable,  and  are  governed  by 

ley   (Eng.)    (1857),   30  L.  T.   R.  the  rule,  applicable  to  all  entire 

(0.  8.)    208;  3   K.   and  J.  271;  contracts,  that  a  breach  by  the 

and  Bartsch  v.  Ilerndon,  Circuit  one    party   a.s   to   any    material 

Ct.   of   Cook   County,   State   of  part   completely   discharges   and 

Illinois,  March   16,  1917,  which  releases    the    other    party    from 

held    that  a  license   to  produce  his  obligations.    It  is  hardly  nec- 

a    play    did    not    pa.ss    to    the  es.sary  to  cite  authorities  on  the 

trustee    where    the    licensee    be-  proposition  that  such  a  contract 

came    insolvent,    tlie  right  to   it  is  entire." 


52  THE    LAW   OF   MOTION   PICTURES 

music,  specially  composed,  to  accompany  the  exhibition 
of  motion  pictures.  This  has  raised  some  very  interesting 
questions  as  to  the  rights  of  the  various  parties  associated 
with  that  kind  of  a  motion  picture. 

In  the  ''Mikado  Case"  '^^  it  was  held  that  where  one 
wrote  the  libretto  of  an  opera  and  another  the  music,  the 
essence  of  the  dramatic  composition  was  in  the  Hbretto, 
stage-business,  dialogue  and  vocal  music  rather  than  in 
the  orchestral  accompaniment.  And  since,  in  that  case, 
Gilbert  &  Sullivan  had  abandoned  their  copyright  to  the 
exclusive  dramatic  representation  of  the  opera  by  con- 
senting to  the  multiplication  and  sale  of  the  libretto  and 
vocal  score  in  England,  they  could  not  enjoin  the  pres- 
entation of  the  opera  here,  the  orchestration  not  being 
theirs. 

Following  the  line  of  reasoning  in  that  case,  it  would 
seepi  that  special  music  composed  for  a  motion  picture, 
is  not  in  itself  a  dramatic  composition.  It  is  incidental  to 
the  picture,  just  as  the  music  of  an  opera  is  incidental  to 
the  play  itself.  It  is  an  integral  and  inseparable  part  of 
the  motion  picture,^^  and  must  stand  or  fall  with  it. 

"The  Mikado  Case  (1885),  25  the  entire  production,  belonged 

Fed.  (C.  C.)  183.    See  also  in  this  to  him,  and  the  plaintiff  had  no 

connection:    Herbert    v.     Fields,  separate   property   ri^ht   therein 

152  N.  Y.  Supp.  487.  and  could  not  restrain  the  de- 

'0  Ilatlon  V.  Kean  (Eng.)  (1859) ,  fendant  from  using  it. 

7  C.  B.  N.  S.  268;  28  L.  J.  C.  P.  WaUcnslcin  v.  Herbert  (Eng.) 
20;  6  Jur.  N.  S.  226;  1  L.  T.  10;  (1867),  15  L.  T.  N.  S.  364;  16 

8  W.  II.  7.  Incidental  music  J^.T.  N.ii.  4r)3;  Herbert  v.  Weber, 
written  for  "Much  Ado  About  N.  Y.  Law  Journal,  Oct.  30, 1907, 
Nothing"  for  defendant  Kean  Judge  Seabury;  MaurcZ  v.  *Smi</i 
who   had   designed   and   created  (1915),  220  Fed.  (D.  C.)  195. 


WHERE    PRODUCER   HAS    NOT    FOLIvOWED   TEXT  53 

If  there  is  no  special  contract  between  the  composer 
of  the  music  and  the  writer  of  the  scenario  both  would 
naturally  be  co-authors  in  the  completed  work  and  their 
rights  and  liabilities  would  become  fixed  as  such  J' 

Section  12. — Where  the  motion  picture  producer  has 
not  followed  the  text  of  the  work  upon  which  the 
motion  picture  is  based. 

In  dealing  with  plays,  novels,  short  stories  and  the 
like  the  motion  picture  producer  is  often  confronted  with 
the  prol^lem  of  how  far  he  may  go  in  making  changes  in 
the  work  when  reproducing  the  same  in  motion  pictures. 

The  literary  product  of  an  author  or  playwTight  is  a 
thing  jealously  watched  by  him,  and  one  in  which  the 
common  law  gives  him  certain  well-defined  rights,  even 
where  he  has  parted  title  with  the  work.^^    These  rights 

"  See  Sections  9  and  10.  author  may  write  to  earn  his  liv- 
^*  Clemens  v.  Press  Publishing  ing  and  may  sell  his  literary  pro- 
Co.  (1910),  67  Misc.  (N.  Y.)  183;  ductions,  yet  the  purchaser,  in 
122  N.  Y.  Supp.  206.  "Even  the  absence  of  a  contract  which 
the  matter  of  fact  attitude  of  the  permits  him  so  to  do,  cannot 
law  does  not  require  us  to  con-  make  as  free  a  use  of  them  a.s  he 
sidor  tlie  sale  of  the,  rights  to  a  could  of  the  pork  which  he  pur- 
litorary  production  in  the  same  cha.sed.  ...  If  the  intent  of  the 
way  that  we  would  consider  the  parties  was  that  the  defendant 
sale  of  a  barrel  of  pork.  Con-  should  purcha.se  the  right  to  the 
tracts  are  to  be  so  construed  as  literary  property  and  publisli  it, 
to  give  effect  to  the  intention  of  the  auihor  is  eniitlcd  not  only  to 
the  jiartios.  The  man  who  sells  be  paid  for  his  work  biU  to  have  it 
a  barrel  of  pork  to  another  may  published  in  the  manner  in  which 
pocket  the  purchase  price  and  he  wrote  it.  The  jmrchaser  cannot 
retain  lU)  further  interest  in  what  garble  it  or  put  it  aid  im<ler  an- 
becomes  of  the  pork.     Wliile  an  other  name  tluin  tfie  aullior's,  nor 


54  THE    LAW   OF   MOTION    PICTURES 

may  not  be  violated  even  by  one  who  purchases  the 
product  of  the  author;  and  it  often  becomes  a  serious 
question  to  determine  just  how  far  a  producer  may  go  in 
making  changes  in  the  work  without  invading  the  rights 
of  the  author  or  playwTight. 

It  is  necessary  to  bear  in  mind  that  there  are  two  dis- 
tinctive classes  who  may  be  guilty  of  such  an  invasion  of 
rights.  One  may  be  an  outright  purchaser  of  a  work,  or, 
again,  he  may  be  nothing  more  than  a  mere  licensee. 

In  the  first  case,  that  of  an  outright  purchaser  of  the 
work,  there  was  for  a  long  time  a  conflict  in  the  decisions 
as  to  how  the  author  might  be  protected  in  his  rights. 
The  law  was  plain  that  while  a  purchaser  of  a  work  might 
go  a  great  deal  further  than  a  mere  hcensee  in  making 
changes  in  it,  nevertheless,  he  would  not  be  permitted 
to  mutilate  the  work  or  so  alter  it  as  to  injure  the  reputa- 
tion or  standing  of  the  author.  But  equity  was  reluctant 
to  interfere;  and  after  numerous  decisions  in  England,  it 
was  finally  determined  and  now  seems  to  be  the  law  both 
in  England  and  this  country,  that  a  mutilation  or  radical 
change  in  a  play  by  one  who  has  purchased  it  outright 
amounts  in  essence  to  a  lihelJ^   And  since  a  libel  is  both 

can   he  omit  altogether  the  name  affects  his  reputation  and  stand- 

0/  the  author  unless  his  contract  ing  and  thus  impairs  or  increases 

with  the  latter  -permits  him  so  to  his  future  earning  capacity." 
do.  '^  Atnerican   Law   Book  Co.  v. 

"The  position  of  an  author  is  Chamherlayne    (lOOS),    165    Fed. 

somewhat    akin    to    that    of    an  (C.  C.  A.)  ;il3;  American  Malting 

actor.     The  fact  that  he  is  per-  Co.   v.   Kcitel    (1913),   20!)    Fed. 

mitted  to  have  his  work  published  (C.  C.  A.)   351.     This  case  re- 

undor   his    name   or   to    perform  views   at   length    th(!    history    of 

before    the    public,    necessarily  this  class  of  litigation. 


WHEHE    PRODUCER   HAS    NOT   FOLLOWED   TEXT 


.')0 


a  crime  and  a  tort  and  equity  will  not  restrain  the  com- 
mission of  crimes,  the  author  is  relegated  to  the  law  side 
of  the  court  for  damages.**"    But  where,  in  addition  to 


^°  American  Law  Book  Co.  v. 
Chamhcrlayne  (1908),  165  Fed. 
(C.  C.  A.)  313.  The  action  was 
brought  in  equity.  The  court 
held  that  tlie  plaintifT  having 
parted  with  his  title  to  the  manu- 
script should  have  brought  an 
action  for  Ubel. 

"If  he  has  sustained  damage 
because  his  article  has  been  pub- 
lished in  a  mutilated  or  altered 
form  or  with  some  misrepresenta- 
tion as  to  its  authorship,  he  may, 
if  he  can  prove  his  allegations, 
recover  in  an  action  for  libel." 
The  court  then  reversed  the 
judgment  secured  after  trial  of 
the  action. 

KipUixg  V.  Fenno  (1900),  lOG 
Fed.  (C.  C.)  692.  In  this  case 
the  work  having  been  dedicated 
to  the  public  it  was  held  that  the 
autlior  could  not  regulate  by  in- 
junction the  manner  in  which 
his  reprinted  stories  should  be 
grouped  and  entitled. 

Cox  v.  Cox  (Eng.)  (1853),  II 
Hare,  118.  Wlicre  there  was  an 
outright  sale  of  a  manuscript  by 
the  author,  the  purchaser  was  at 
liberty  to  alter  and  deal  with  it 
as  he  thought  proper,  unless  there 


was  a  special  contract  reserving 
to  the  author  any  rights. 

Archhold  v.  Sweet  (Eng.)  (1832), 
1  M.  &  Rob.  62;  5  Car.  &  P.  219. 
The  publisher  of  plaintiff's  work 
was  the  owner  of  the  copyright 
tlierein. 

Held  that  plaintifT  could  main- 
tain an  action  at  law  for  any 
injury  sustained  by  him  by  rea- 
son of  the  publication  of  an  in- 
accurate edition  of  his  work 
falsely  purporting  to  have  been 
executed  by  him. 

Lee  v.  Gibbitigs  (Eng.)  (1892), 
67  L.  T.  263.  The  publisher  in 
bringing  out  a  second  edition  of 
a  work  omitted  portions  of  it. 
The  author  .sought  to  enjoin  the 
pubUcation  of  the  book  upon  the 
ground  that  such  publication 
caused  an  injury  to  his  reputa- 
tion. 

Held  that  plaintiff's  remedy 
was  at  law  for  libel. 

Atigers  v.  Leprohon  (Can.),  22 
Que.  S.  C.  170.  It  was  here  held 
that  where  a  work  was  in  the 
public  domain,  the  publication 
of  the  same  under  a  title  different 
from  that  used  by  the  author  tlid 
not  furnish  ground  for  an  in- 


56 


THE   LAW    OF  MOTION   PICTURES 


the  libel,  there  is  the  element  of  "passing  off"  or  fraud 
and  deception  of  the  public,  equity  will  interfere. 

In  the  case  of  a  mere  Ucensee,  the  rule  is  different. 
There  we  have  the  case  of  one  injuring  a  work  of  which  he 
is  not  the  owTier,  or  damaging  the  reputation  of  its  author 
who  is  not  a  stranger  to  him,  but,  on  the  contrary,  be- 
tween whom  and  himself  there  is  some  privity.  In  such 
a  case  equity  will  intervene,  and  injunction  will  issue  to 
restrain  the  irreparable  damage  that  may  be  done.^^ 


junction  particularly  where  both 
the  original  publication  and  the 
later  publication  appeared  under 
a  pseudonjin  and  it  was  not 
proven  that  the  public  knew  the 
author  under  the  assumed  name. 

Ilumphries  v.  Thompson  (Eng.) 
(1908),  Times,  Apr.  29,  30, 
May  1.  Even  though  the  pub- 
lisher owns  the  copyright  in  the 
book,  he  cannot  so  publish  the 
work  as  to  injure  the  reputation 
of  the  author.  If  he  does  so,  he 
may  be  sued  for  libel. 

Crookes  v.  Pctter  (Eng.)  (1860), 
6  Jur.  (N.  S.)  1131;  3  L.  T.  225. 
The  name  of  the  editor  of  a  news- 
paper was  to  appear  on  the  title 
page  and  did  appear  there  for 
some  time.  The  editor  sought 
to  enjoin  the  removal  of  his  name 
from  such  title  page.  It  was 
agreed  not  to  change  the  title. 

Ifcld  that  since  his  name  was 
n(jt  part  of  the  title  he  could  not 


enjoin  its  removal,  but  that  he 
could  maintain  an  action  at  law 
for  any  damages  he  may  have 
sustained. 

See  also:  Carlton  Illustrators  v. 
Coleman  (Eng.)  (1911),  80  L.  J. 
K.  B.  510;  1  K.  B.  771  (1911); 
104  L.  T.  413;  and  Cooper  v. 
Whittingham  (Eng.)  (1880),  49 
L.  J.  Ch.  752;  15  Ch.  D.  501, 
followed. 

Ridge  v.  English  Illustrated 
Magazine  (Eng.)  (1913),  Times, 
June  13.  The  publication  of  an 
inferior  work  under  the  name  of 
an  author  of  literary  reputation 
when  such  work  was  not  in  fact 
written  by  him  constitutes  an 
actionable  libel  and  plaintiff  is 
not  required  to  prove  malice  or 
actual  damage. 

^^  Royle  V.  Dillingham  (1907), 
53  Misc.  (N.  Y.)  383;  104  N.  Y. 
Supp.  783.  There  the  court  said: 
"Probably   under   the   common- 


WHERE    PRODUCER   HAS    NOT    FOLLOWED    TEXT 


Equity  will  not  rostrain  one  from  doing  that  which  ho 
pleases  with  his  own  property;  and  if  in  the  conduct  of  it, 
he  injures  another,  the  latter  must  sue  in  damages  for 
the  tort.  But  where  one  attempts  as  in  the  case  of  a 
mere  hcensee,  to  injure  property  in  which  another  has 
the  title,  equity  will  enjoin  such  acts. 

The  fact  that  a  work  is  produced  in  serial  form  gives 
the  producer  no  gi'oater  rights  with  respect  to  changes  or 
mutilation  than  where  the  entire  work  is  brought  out 
at  one  time.^- 

The  author  has  the  strict  right  to  presen,'e  the  identity 
of  his  creation.^^    So  it  would  seem  that  if  a  producer  of 


law  and  certainly  under  his  con- 
tract, the  plaintiff  is  within  his 
rislits  in  invoking  equital)le  juris- 
diction. Whether  we  have  gone 
quite  so  far  as  other  countries 
whose  literary  history  is  longer 
in  the  jirotection  of  literary 
property,  may  be  open  to  doubt; 
but  there  is  as  there  should  be,  a 
growing  tendency  to  bestow  on 
authors  that  full  measure  of  pro- 
tection wliich  their  unicjue  prop- 
erty requires.  Whether  the  work 
is  great  or  trivial,  original  or 
adapted,  the  principle  should  be 
the  same  so  long  as  the  work  is 
the  author's  own.  The  court 
will  not  apply  canons  of  literary 
taste,  but  leave  that  to  the  public. 
The  tendency  of  our  autliorities 
is  shown  by  such  cases  as  Clem- 
niens  v.   Belford,   14  Fed.   728; 


Ilarte  v.  De  Wilt,  1  Cent.  Law 
Journal,  360. 

Gilbert  V.  Workman  et  al.  (Eng.) 
(1910),  Times,  Jan.  19th.  In- 
junction was  granted  ex  parte  re- 
straining introduction  of  a  song  in 
an  operetta,  which  was  not  a  part 
thereof. 

*-  Humphries  v.  Thompson 
(Eng.)  (1908), Times,  Apr.  29,30, 
May  1. 

"  De  Bekker  v.  Slokes  Co.  ( 1 9 1 6) , 
168  A.  D.  (N.  Y.)  452;  157  N.  Y. 
Supp.  576.  The  plaintiff  sold  to 
defendant  the  exclusive  right  to 
publish  the  work,  prepared  by 
plaintiff,  and  entitled  "Stokes 
Encyclopedia  of  Music."  The 
defendant,  after  selling  the  book 
in  the  regular  way,  authorized 
the  defendant  the  University 
Company   to   publish   the   book 


58 


THE    LAW   OF   MOTION   PICTURES 


pictures  took  two  or  more  separate  scenarios  written  by 
two  or  more  people,  or  even  by  the  same  person,  and 
together  with  eight  other  volumes      notice.      The    court    granted    a 


under  the  title  "Encyclopedia  of 
Music."  Defendants  were  en- 
joined. 

Drummond  v.  Altemus  (1894), 
60  Fed.  (C.  C.)  338.  Where 
there  were  published  a  few  of  a 
series  of  lectures  given  by  plain- 
tiff which  lectures  had  been 
dedicated  to  the  public,  the  lec- 
tures having  been  incorrectly 
copied  and  the  book  purported 
to  contain  the  entire  series  of 
lectures,  it  was  held  that  an  in- 
junction would  issue  to  enjoin 
such  publication. 

Hart  V.  De  Witt,  1  Cent.  Law  J. 
360.  "I  think  that  the  plaintiff 
has  such  an  interest  in  his  name 
and  reputation  as  an  author  as 
entitles  him  to  invoke  the  aid  of 
equity  in  restraining  the  defend- 
ant from  falsely  representing 
that  a  literary  production  pub- 
lished and  sold  by  the  defendant, 
is  the  work  of  the  plaintiff." 

In  this  case  the  defendant  pub- 
lished a  book  several  chapters 
of  which  had  been  written  by  the 
plaintiff  and  other  parts  by  an- 
other. The  authorship  of  the 
entire  book  wa.s  ascribofl  to  plain- 
tiff, altliough  at  the  end  of  the 
book  there  was  an  explanatory 


temporary  nijunction. 

Excerpt  from  Editorial  of  the 
N.  Y.  Law  Journal  of  March  21, 
1916,  in  discussing  Alorang  v. 
Le  Sueur  (Can.)  (1911),  45  Can. 
Sup.  Ct.  95. 

The  learned  Chief  Justice 
speaks  of  the  absence  of  English 
authorities,  but  in  a  note  to  the 
story  in  Case  and  Comment  it  is 
stated  that  "in  England  ap- 
parently the  same  rule  has  been 
laid  down  in  an  unreported  case," 
citing  The  Writer  (Boston,  vol. 
26,  No.  10,  p.  150).  Substanti- 
ally in  accord  with  these  decisions 
was  one  of  the  German  Imperial 
Court,  the  substance  of  which 
was  stated  in  the  Harvard  Law 
Review  for  May,  1913,  as  follows: 

"A  Lady  who  owned  a  private 
residence  in  Berlin,  of  which  she 
occupied  the  upper  floor,  while 
the  lower  floor  was  let  to  a  tenant, 
desired  to  have  the  vestibule 
of  the  house  decorated  by  a 
fresco  painting  and  engaged  a 
well  known  artist  to  do  the  work. 
The  painting  when  finished  rep- 
resented an  island  with  some 
nude  figures  of  sirens.  To  these 
nudes  the  lady  who  had  ordered 
the  painting  took  exception,  and 


WHEUE    PHODITCER   HAS   NOT   FOLLOWED   TEXT 


59 


combined  them  all  into  one  picture,  he  would  \)o  distinctly 
violating  the  right  of  separate  identity,  and  would  be 
liable  in  damages  and  injunction. 

^\^lc^e  in  the  case  of  the  granting  of  a  license,  the  li- 
censee agi'ees  that  no  changes  or  alterations  shall  be 
made,  or  no  artist  shall  be  engaged  without  securing  the 
consent  of  the  licensor,  a  violation  of  such  agreement  will 
be  enjoined. ^^ 


she  had  another  artist  overpaint 
the  figures  so  that  they  appeared 
a-s  draped.  The  first  artist  con- 
tended that  this  change  violated 
rights  which  as  an  artist  he  had 
in  the  integrity  of  his  work,  and 
although  the  owner  covered  the 
altered  portion  of  the  fresco  by  a 
curtain,  lie  was  not  satisfied, 
but  brought  an  action  demanding 
the  restoration  of  the  painting  to 
its  original  condition,  or  failing 
in  that  doniaiid,  its  entire  with- 
drawal from  whore  it  might  be 
visible  to  strangers.  The  lower 
court  granted  the  latter  prayers, 
and  the  i)laintiff  appealed.  Held, 
that  the  overpainted  drapery 
must  be  removed.  (79  Entsche- 
idungen  des  Reichsgerichts,  397, 
German  Imperial  Court,   1912). 

The  court  said  that  the  prin- 
ciple of  the  decision  must  be 
deduced  from  the  relative  right.s 
of  the  owners,  of  the  |Mil)lic,  of 
the  artist  to  his  reputation,  and 


perliaps  from  a  right  of  person- 
ality, which,  even  if  not  recog- 
nized as  a  distinct  generic  right, 
may  yet  be  enforced  with  regard 
to  particular  interests. 

Although  the  German  law  is 
codified,  there  is  no  explicit  pro- 
vision applicable  to  the  particular 
controversy  involved.  It  is  sig- 
nificant that  rights  of  control  of  a 
manuscript  or  a  painting  have 
been  upheld  both  in  code  and 
common-law  jurisdictions.  A 
result  similar  to  that  reached 
in  these  cases  ought  to  be  worked 
out  cverj^iere  upon  some  theory, 
no  matter  what  the  general  form 
or  particular  provisions  of  the 
local  law  maj'  be.  The  remarks 
of  Chief  Justice  Fitspatrick  in 
the  Supreme  Court  of  Canada 
(supra)  upon  the  unicjue  and 
complex  character  of  literary 
property  may  be  taken  a.s  a  guide 
in  effectuating  justice  in  any  con- 
troversy of  this  nature. 

^*Royle  v.  Dillingham  (1007), 


60 


THE   LAW   OF  MOTION   PICTURES 


An  author  may  enjoin  the  exhibition  of  a  motion  pic- 
ture which  is  purported  to  have  been  based  upon  his  work 
when  not  so  in  fact.^^    And  it  would  seem  that  this  right 


53  Misc.  (N.  Y.)  383;  104  N.  Y. 
Supp.  783.  It  was  here  held  that 
a  producer  of  a  play  who  agreed 
that  no  additions  or  alterations 
would  be  made  without  the  con- 
sent of  the  author  would  be  en- 
joined from  making  any  unau- 
thorized change  or  modifications 
in  the  text  or  structure  of  the 
work. 

Loicenfeld  v.  Curtis  (1896),  72 
Fed.  (C.  C.)  105.  Plaintiff  made 
an  agreement  with  defendant 
giving  defendant  a  license  to 
produce  a  play  entitled  "Gentle- 
man Joe."  The  contract  pro- 
vided : 

1.  That  no  alterations  or  ad- 
ditions were  to  be  made  without 
the  written  consent  of  the  plain- 
tiff. 

2.  That  the  names  of  the  ar- 
tists who  were  to  be  engaged  were 
to  be  submitted  for  the  approval 
of  the  plaintiff. 

Upon  motion  for  an  injunc- 
tion it  was  held  with  respect  to 
(1),  "Additions  to  the  play  .  .  . 
are  wholly  unwarranted,  except 
upon  the  written  consent  of  tlic 
complainant.  Defendant  was  en- 
titled to  produce  the  play  only 


in  strict  conformity  to  the  manu- 
script and  score."  The  court 
also  intimated  that  any  altera- 
tions of  the  play  would  have 
violated  the  terms  of  the  con- 
tract; with  respect  to  (2)  that 
failure  to  submit  names  of  per- 
formers to  plaintiff  was  a  breach 
which  entitled  plaintiff  to  an  in- 
junction. 

85  Clemens  v.  Beford  (1883),  14 
Fed.  (C.  C.)  728.  "An  author  of 
acquired  reputation  and  perhaps, 
a  person  who  has  not  obtained 
any  standing  before  the  public 
as  a  writer,  may  restrain  another 
from  the  publication  of  literary 
matter  purporting  to  have  been 
written  by  him,  but  which,  in 
fact,  was  never  so  written.  In 
other  words  no  person  has  the 
right  to  hold  another  out  to  the 
world  as  the  author  of  literary 
matter  which  he  never  wrote; 
and  the  same  would  undoubtedly 
apply  in  favor  of  a  person  known 
to  the  public  under  a  nom  de 
plume,  because  no  one  has  the 
right  either  expresslj'  or  by  iin- 
l)lication  falsely  or  untruly  to 
charge  another  with  the  composi- 
tion or  authorship  of  a  literary 


WHERE    PRODUCER   HAS    NOT    FOLLOWED    TKXT 


01 


may  be  exercised  by  the  executor  of  a  deceased  author.*' 
An  author's  name  has  a  property  value.  Its  use  amounts 
to  the  taking  of  another's  property.  Where  the  work  is 
in  the  public  domain,  anyone  using  such  work  has  tlie 
right  to  use  the  name  of  the  author  in  connecti(jn  there- 
with.8^ 

Where  he  has  applied  a  nom  de  plume  to  his  work  the 
nom  de  plume  or  the  true  name  of  the  author  may  be 


production  which  he  did  not 
write." 

Robertson  v.  Berry  (1878),  50 
Md.  591.  In  the  application  of 
his  name  to  a  work  the  autlior 
has  a  property  right  whicli  a 
court  of  c(iuity  will  protect 
against  such  a  use  or  imitation 
as  may  cause  damage  to  the 
author's  property. 

Lancia  v.  Grccnbcrg  (Eng.) 
(1908),  24  T.  L.  R.  441.  One 
who  contributes  to  the  plaintiff's 
publication  under  a  nom  de  plume 
may  after  dismissal  restrain  the 
use  of  such  nom  de  plume,  as  she 
has  an  exclusive  property  right 
thereto. 

Collins  V.  Public  Ledger  Co., 
Court  of  Common  Pleas,  In 
Equity,  Philadelphia,  Pa.,  June 
Term,  1917,  No.  2272;  July  17, 
1917,  Barratt,  P.  J.  Plaintiff 
had  conducted  a  column  in  de- 
fendant's newspajier  under  the 
signature  of  "Ciirard."  After 
leaving    its    employ,    defendant 


continued  to  edit  the  column 
under  the  same  name.  Defend- 
ant was  enjoined  from  so  doing. 
Suburlxin  Press  v.  Phila.  Subur- 
ban Piihl.  Co.  (1910),  227  Pa.  St. 
148;  75  Atl.  1037. 

8«  Wood  V.  Butterworth  (Eng.) 
(1901),  Times,  Dec.  23.  An 
executor  of  a  deceased  author 
was  granted  an  injunction  ex 
parte  enjoining  one  from  falsely 
imputing  tlie  autliorship  of  a 
work  to  plaintiff's  testator. 

*^  Edison  v.  Polyjorvi  Mfg.  Co. 
(1907),  67  Atl.  392;  lolanthe  Case 
(1883),  15  Fed.  (C.  C.)  439;  Daly 
V.  Wabash  (1899),  40  A.  D. 
(N.  Y.)  220;  57  N.  Y.  Supp. 
1125. 

See  in  this  connection:  Rex  v. 
Daoust  (Can.),  28  D.  L.  R.  293; 
20  Can.  Cr.  Cas.  09;  49  Que.  S.  C. 
65.  Held  a  criminal  offense  to 
suppress  the  name  of  a  play- 
wright, even  though  he  was  a 
foreigner,  wIutc  his  country  was  a 
party  to  the  Berne  convention. 


62 


THE    LAW   OF   MOTION   PICTURES 


used  at  the  option  of  the  motion  picture  producer  in  con- 
nection with  the  use  of  the  work.^^  Where  the  motion 
picture  producer  is  the  owner  of  the  work  or  where  the 
Hterary  product  is  in  the  pubhc  domain,  it  would  seem 
that  he  is  not  bound  to  use  the  name  of  the  author  in 
connection  with  the  exploitation  of  the  work;  that  is,  he 
is  not  required  to  use  the  name  of  the  author,  but,  on  the 
other  hand  he  may  not  use  any  other  name.^' 


88  Clemens  v.  Beljord  (1883),  14 
Fed.  (C.  C.)  728.  "It  does  not 
seem  to  me  that  an  author  or 
■ftTiter  has  or  can  acquire  any 
better  or  higher  right  in  a  nom  de 
plume  or  assumed  name  than  he 
has  in  his  Christian  or  baptismal 
name.  "When  a  person  enters 
the  field  of  authorship  he  can 
secure  to  himself  the  exclusive 
right  to  his  writings  by  a  copy- 
right under  the  laws  of  the 
United  States.  If  he  publishes 
anything  of  wliich  he  is  the  au- 
thor or  compiler,  either  under  his 
own  proper  name  or  an  assumed 
name,  without  protecting  it  by 
copyright,  it  becomes  public  prop- 
erty, and  any  person  who  chooses 
to  do  so  has  the  right  to  repub- 
lish it  and  to  state  the  name  of 
the  author  in  such  form  in  the 
book,  either  upon  the  title  page 
or  otherwise,  as  to  show  who  was 
the  writer  or  author  thereof. 

""  Jones  V.  American  Law  Book 
Co.  (1908),  125  A.  D.  (N.  Y.)  519; 


109  N.  Y.  Supp.  706.  Plaintiff 
agreed  to  write  legal  articles  for 
defendant  for  one  year  at  a  speci- 
fied rate  of  payment  per  page. 
Contract  provided  that  work 
was  to  belong  absolutely  to  de- 
fendant, that  defendant  could 
make  any  and  all  charges  it  de- 
sired. It  was  held  that  in  view 
of  the  contract  made,  plaintiff 
could  not  insist  upon  having  his 
name  printed  as  author  of  the 
work. 

Mallory  v.  Mackaye  (1898),  86 
Fed.  (C.  C.)  122;  modified  in  92 
Fed.  (C.  C.  A.)  749,  on  another 
point.  Plaintiff  engaged  defend- 
ant for  a  specified  period  and 
agreed  to  pay  him  a  stipulated 
salary  as  well  as  a  share  of  the 
profits.  Defendant  agreed  that 
title  in  defendant's  productions 
should  belong  to  plaintiff.  It  was 
held  that  a  patent  for  a  revolving 
stage  secured  by  defendant  and 
a  play  written  l)y  him  Ix'longcd 
to   plaintiff;    that   omitting    the 


CRITICISM    OF   THE    WORK 


63 


Section  13. — Criticism  of  the  work. 

"\Mieii  an  author  places  his  book  before  the  puljlic  he 
invites  criticism;  and,  however  hostile  that  criticism  may 
be,  and  however  mucli  damage  it  may  cause  him  .  ,  . 
the  critic  is  not  liable  in  an  action  for  libel,  provided  he 
makes  no  misstatement  of  any  material  facts  contained 
in  the  writing,  and  does  not  attack  the  character  of  the 
author."  »" 

The  critic  may  use  ridicule.^ ^    He  may  even  underrate 


name  of  the  author  from  ad- 
vertisements did  not  justify  de- 
fendant in  himself  usnig  the  play. 

Booth  V.  Lloyd  (Eng.)  (1910), 
26  T.  L.  R.  549.  Plaintiff  was 
owner  of  the  copyright  of  a  musi- 
cal composition,  lie  granted  the 
right  to  a  tliird  person  to  "print, 
publish  and  sell."  Held  that  the 
licensee  was  not  bound  to  print 
and  publish  the  musical  composi- 
tion in  his  name. 

But  see  Clemens  v.  Press  Pub- 
lishing Co.  (1910),  67  ^lisc. 
(N.  Y.)  183;  122  X.  Y.  Supp.  206. 

'"  DowUng  v.  Lii'ing.stone  (1S90), 
108  Mich.  321;  06  X.  W.  225. 
Plaintiff  published  a  book  en- 
titled "The  Wage  Worker's 
Remedy."  The  defendants  in 
their  newspaper  severely  criti- 
cised the  composition  as  well  as 
the  theories  of  the  author  but 
made  no  personal  attack  on  him. 
•See  also:  Campbell  v.  SpoUiswood 


(Eng.),  3  F.  &  F.  421 ;  Morrison  v. 
Belcher  (Eng.),  3  F.  &  F.  614; 
Belknapp  v.  Ball  (1890),  83  Mich. 
589;  47  X.  W.  674;  Walker  v. 
Tribime  (1887),  29  Fed.  (C.  C.) 
827. 

Slewart  v.  Reuters  Telegram 
(Eng.),  1911,  Times,  Feb.  1. 
Statements  made  concerning  a 
pubhcation  which  were  untrue 
were  held  to  be  not  libellous  per  se 
xchen  made  in  good  faith. 

Thomas  v.  Bradbury  (Eng.) 
(1905),  Times,  July  5-6-7;  aff'd 
95  L.  T.  23.  Plaintiff  sued  al- 
leging that  defendant,  publishers 
of  Punch,  had  criticised  his  work 
so  harshly  as  to  evince  malice. 
He  received  a  verdict  of  £300. 

8'  Dou'ling  wLiringstonc  (1896), 
108  Mich.  321;  66  X.  W.  225. 
"One  wTitcr  in  exposing  the 
follies  and  errors  of  another  may 
make  use  of  ridicule,  however 
poignant,  and  if  loss  occurs  it  is 


64 


THE    LAW    OF   MOTION   PICTURES 


the  author's  talents.^-  But 
work  ^^  or  uses  the  criticism 
character  or  private  Hfe  of 

damnum  absque  injuria.  Can  v. 
Hood,  1  Campb.  354;  Strauss  v. 
Francis,  4  Fost.  &  F.  1114."  To 
the  same  effect:  Soane  v.  Knight, 
Moody  &  M.  74;  Thompson  v. 
Shackell,  Moody  &  M.  187,  Swan 
V.  Tappaji,  5  Cush.  105;  Gott  v. 
Pulsifcr,  122  Mass.  235. 

Walker  v.  Tribune  (1887),  29 
Fed.  (C.  C.)  827.  An  attorney 
who  had  written  a  pamphlet  was 
referred  to  as  a  "crank."  Held 
not  libelous  per  se. 

92  Naulty  V.  Bulletin  Co.  (1903), 
206  Pa.  St.  128;  55  Atl.  862.  A 
statement  respecting  a  writer  on 
historical  subjects  that  he  was 
not  qualified  as  an  expert  in  his- 
torical matters  and  that  in  send- 
ing certain  letters  and  in  acting 
as  an  officer  of  a  historical  so- 
ciety he  was  guilty  of  fraud  and 
deception,  was  held  not  to  be 
libelous  as  it  did  not  impugn 
the  good  faith  of  plaintiff,  but 
merely  took  issue  as  to  the  cor- 
rectness of  the  facts  set  forth  in 
the  letters  sent  out  by  plaintiff. 

"  Carr  v.7/oofZ(Eng.) ,  1  Campb. 
355.  Where  the  critic  introduced 
fiction  in  order  to  distort  and 
make  ridiculous  the  work,  he 
was   held   liable   for   libel.     See 


where  the  critic  distorts  the 
as  a  means  of  attacking  the 
the  author,^^  he  is  guilty  of 
also:  Tabart  v.  Tepper  (Eng.), 
1  Campb.  351 ;  Whistler  v.  Ruskin 
(Eng.)  (1878),  Times,  Nov.  26, 
27. 

^^  Cooper  V.  Stone  (1840),  2t 
Wend.  (N.  Y.)  434.  Criticism  of 
the  work  of  an  author  is  permis- 
sible, but  the  critic  may  not 
attack  the  moral  character  of 
the  author  in  his  review;  where 
he  does  so  it  becomes  a  question 
of  good  faith,  and  when  the  critic 
raises  the  question  of  privilege, 
it  is  for  the  jury  to  pass  on. 

"I  do  not  speak  of  criticism 
upon  the  works  of  an  author  in 
the  abstract;  for  this  I  admit  no 
action  can  lie.  Certainly  not, 
unless  the  criticism  be  grossly 
false  and  work  a  special  damage 
to  the  proprietor  of  the  book  at 
which  the  strictures  are  levelled." 

Croasdale  v.  Tantum  (1880),  6 
Houst.  (Del.)  60.  A  reference  to 
an  editor  of  a  newspaper  as  a"  mis- 
erable specimen  of  humanity"  was 
held  to  be  libelous  in  connection 
with  a  statement  that  defendant 
was  obliged  to  write  the  article  to 
apprise  the  public  of  an  attempt 
to  destroy  the  character  of  de- 
fendant. 

Spooner  v.  Daniels  (1854),  Fed. 


CRITICISM   OF  THE    WORK 


65 


libel.  That  is  true  even  where  he  attempts  to  justify 
his  act  upon  the  ground  that  it  was  a  mere  jcst."^  An 
oral  imputation  of  insanity,  however,  was  not  held 
slanderous  per  se.®^ 


Cas.  No.  13,244a  (C.C).  Where 
an  author  was  referred  to  as  a 
fraud,  humbug  and  swindler, 
t!;e  words  were  licid  to  be  Hbclous. 

Reade  v.  Sweetzer  (18G9),  G  Al)b. 
Pr.  (X.  S.)  (X.Y.)  9  (note).  "The 
critic  may  say  what  he  pleases  of 
the  literary  merits  or  demerits 
of  the  published  products  of  an 
author;  but  that  with  respect  to 
his  personal  rights  relating  to 
his  reputation  the  critic  has 
no  more  privilege  than  any  other 
person  in  assuming  the  business 
of  criticism." 

The  court  then  holds  that  ac- 
cusing an  author  of  writing  mat- 
ter of  a  demoralizing  effect  is 
libelous.  See  also:  Kennedy  v. 
Press  Puhl.  Co.  (1886),  41  Hun 
(X.  Y.),  422;  Harl  v.  Toxvnsend 
(1884),  67  How.  Pr.  (X.  Y.)  88; 
Archhold  V.  Sweet  (Eng.)  (1832), 
5  Car.  &  P.  219;  Macleod  v. 
Wakchj  (Eng.)  (18:31), 3  Can.  &  P. 
311;  Graham  v.  McKimm  (Can.), 
19  Ont.  475;  Browning  v.  Van 
Rensselaer  (1899),  97  Fed.  531 
(C.  C);  Eraser  v.  Berkeley  (Eng.) 
(1833),  7  C.  &P.  621. 

"  Triggs  v.  Su7i  Printing  &  Pid)- 
lishing  Assn.   (1904),  179   X.  Y. 


144;  71  X.  E.  739.  "A  publica- 
tion, which  in  effect  represent.s 
an  author  as  a  presumptuous 
literary  freak  and  ridicules  his 
private  life,  is  not  within  the 
bounds  of  fair  and  honest  literary 
criticism,  is  libelous  per  sc,  and 
cannot  be  justified  upon  the 
ground  that  it  was  a  mere  jest, 
when  it  is  perfectly  manifest 
from  the  language  employed  that 
it  is  an  attack  upon  his  reputa- 
tion or  business."  The  court 
cites  Cooper  v.  Stone,  24  Wend. 
(X.  Y.)  434;  Mattice  v.  Wilcox, 
71  Hun  (X.  Y.),  485;  24  N.  Y. 
Supp.  lOGO;  aff'd  147  X.  Y.  624; 
42  X.  E.  270;  Ilanneton  v.  Eno,  81 
N.  Y.  116. 

'«  "George,  the  Count  Joannes" 
V.  Burt  (1863),  88  Mass.  236. 
An  oral  imputation  of  insanity 
is  not  libelous  per  se. 

See  in  this  connection:  Smith 
V.  Clinton  (Eng.)  (1908),  Times, 
Oct.  19-29.  The  printer  is  liable 
for  libelous  matter  printed  by 
him,  and  he  cannot  hold  the 
proprietor  of  the  work  to  account 
to  him,  even  though  it  was  ex- 
pressly contracted  that  lie  be 
indemnified. 


CHAPTER  II 

THE   AUTHOR  (CONTINUED) 

Miscellaneous  Questions 

Sec.  14.  On  the  question  whether  the  contract  existing  between  the 
parties  is  a  personal  one. 

15.  Where  the  contract  contains  a  negative  covenant. 

16.  Where  the  work  is  to  be  to  the  satisfaction  of  the  producer. 

17.  Where  the  contract  provides  for  the  writing  of  a  libelous, 

immoral  or  seditious  work. 

18.  Where  the  license  granted  is  a  sole  and  exclusive  one. 

19.  Where  the  contract  contains  limitations  as  to  methods  of 

exploitation. 

20.  Where  the  work  is  to  be  produced  at  a  definite  time. 

21.  Where  the  payment  to  the  author  is  based  upon  a  percentage 

of  the  gross  receipts  or  net  profits. 

22.  Where  the  amount  to  be  paid  to  the  author  is  guaranteed. 

23.  Where  the  payment  to  the  author  is  a  stipulated  amount 

per  performance  or  per  period. 

24.  Where  the  amount  of  damages  in  the  event  of  a  breach  is 

stipulated. 

25.  Where  the  contract  provides  for  a  forfeiture  upon  failure  to 

pay  the  royalties  due. 

26.  Where  the  manuscript  is  lost  or  converted  after  submission 

to  the  producer. 

27.  Where  the  work  is  secured  by  means  of  a  prize  contest. 

28.  On  the  question  whether  an  outright  purchaser  is  required 

to  reproduce  the  work. 
20.  On  the  (lucstion  whctluir  the  producer  is  entitled  to  a  refund 
of  advance  payment. 
66 


QUESTION    WHETHER   CONTRACT   IS    PERSONAL   ONE      G7 

30.  On  the  question  whether  the  contract  may   be  rescinded 

where  the  author  made  a  poor  bargain  or  where  fraud  Is 
involved. 

31.  On  the  question  whether  the  contract  may  be  rescinded  where 

the  producer  made  a  poor  bargain  or  where  fraud  is  in- 
volved. 

32.  On  the  question  whether  a  contract  to  write  will  be  specifically 

enforced. 

33.  On  the  question  whether  the  licensor  may  maintain  an  action 

against  third  parties. 

34.  On  tlie  question  whether  courts  grant  injunctions  pendente 

lite  more  readily  in  actions  of  this  nature. 

Section  14. — On  the  question  whether  the  contract  exist- 
ing between  the  parties  is  a  personal  one. 
It  has  been  generally  settled  that  contracts  between 
authors  or  proprietors  of  literary  works  with  producers 
are  personal  and  are  not  assignable  by  either  party  with- 
out the  consent  of  the  other.  ^    Thus,  where  a  hccnse  is 

1  "Contracts  in  which  the  per-  N.  Y.  Supp.  277;  N.  Y.  Phono- 

sonal  acts  and  qualities  of  one  of  graph  Co.  v.  Davega  (1908),  127 

the   contracting   parties   form   a  A.   D.   (X.  Y.)   222;   Hi   N.  Y. 

material  ingredient  are,  in  general  Supp.    363;    Booth    v.    Richards 

not   a.ssignable."      2    Chitty    on  (Eng.)    (1910),  Times,  July   14; 

Contracts,  nth  Am.  Ed.,  p.  13G3.  Hole  v.  Bradbury  (Eng.)  (1879), 

To  the  same  effect:  Mallonj  v.  12    Ch.    D.    886;   41    L.   T.    R. 

MacA-o// (1899),  92  Fed.  (CCA.)  153;  Stevens  v.   Benning   (Eng.) 

1\<^-  BlakeUj  V.  Soma  {\mi),Vdl  (1854),    1  K.  «&  J.   169;   24   L. 

Pa.  St.  305;  47  Atl.  280;  .S/oa/i.  V.  T.    R.    (0.    S.)    154;    Rcade    v. 

WilUamii    (1891),    138    111.    43;  /^cu/Z^y  (Eng.)  (1857),  3  K.  &  J. 

27  N.  E.  531;  Woosler  v.  Crane  271;  30  L.  T.    R.   (O.  S.)  268; 

(1907),  66   Atl.    1093;  Oliver  v.  Grijfith  v.  Tower  Publ.  Co.  (Eng.) 

Rumford  (1883),   109  U.  S.   75;  (1897),  1  Ch.  21;  75  L.  T.   R. 

3  Sup.  Ct.  1.61;  Tuttlc  v.  La  Dow  (N.  S.)  330. 
(1889),  54  Hun  (X.  Y.),  149;  7         See  in  this  connection:  Stand- 


68  THE   LAW  OF  MOTION   PICTURES 

given  to  produce  a  play,  a  subletting  of  the  play  to  some 
third  party  has  been  held  to  be  a  breach  of  the  contract. ^ 

In  the  production  of  a  play,  which  means  the  visualizing 
of  the  thoughts  of  the  author  employed  in  the  manuscript, 
the  greatest  skill  and  ability  are  necessary.  The  success 
of  the  play  is  dependent  to  a  large  extent  upon  its  proper 
casting,  the  selection  of  artists  possessing  the  peculiar 
and  particular  talents  necessary  to  properly  interpret 
the  parts  and  to  portray  the  characters  as  conceived 
by  the  author,  the  planning  of  appropriate  backgrounds, 
sceneries,  costumes,  paraphernalia  and  other  accessories, 
the  ability  to  secure  bookings  in  desirable  territory  and 
in  the  best  theatres.  An  element  of  confidence  largely 
enters  because  the  author  is  dependent  for  his  compensa- 
tion upon  the  royalties  he  receives  from  the  manager 
for  the  performances.  The  manager  has  the  exclusive 
handling  of  the  funds  and  the  making  up  of  the  daily 
and  weekly  receipts  and  a  dishonest  manager  can  easily 
defraud  the  author  by  means  of  false  returns  as  well  as  a 
refusal  to  pay  the  royalties. 

If  the  producer  becomes  a  bankrupt  either  through  vol- 

ard  Am.  Publ.  Co.  v.  Methodist  To    the   same   effect:    Reade   v. 

Concern  (1898),  33  A.  D.  (N.  Y.)  Bentley  (Eng.)  (1857),  4  K.  &  J. 

409;  54  N.  Y.  Supp.  55.  656;    Griffith    v.    Tower    (Eng.) 

^Herne  v.   Licbler   (1902),  73  (1897),  1  Ch.  21. 

A.   D.    (N.   Y.)    194;  76   N.   Y.  But  when  the  contract  granted 

Supp.    762.     Where   the   Ucense  a,  license  to  "  produce  or  have  pro- 

was  granted  to  defendants  and  duced"  a  production  in  "stock" 

the  defendants  agreed  to  produce  it  was  held  not  a  breach  of  the 

the   phiy,  the  subletting  of  the  contract.       Peple    v.    Comstock, 

play  to  stock  companies  was  hold  N.   Y.    Law   Journal,  April    27, 

to  be  a  breach  of  the  contract.  1909. 


QUESTION   WHETHER   CONTRACT   IS   PERSONAL  ONE      69 

untary  or  involuntary  proceedings,  the  right  to  produce  the 
play  docs  not  pass  to  the  trustee  in  bankruptcy,  but  on 
the  contrary,  reverts  to  the  licensor.'  Upon  bankruptcy 
the  author  is  reheved  of  his  obligation  to  complete  the 
work.'  Wliere  the  firm  of  the  producer  is  changed  sub- 
sequent to  the  making  of  the  contract  the  license  ter- 
minates.^ Being  a  contract  for  personal  services  the 
death  of  either  party  terminates  the  contract.® 


»  Walermati  v.  Shipman  (1893), 
55  Fed.  (C.  C.  A.)  9S2.  A  license 
granting  the  sole  right  to  manu- 
facture a  patented  article  was 
personal  and  did  not  pass  to  a 
receiver  appointed  in  proceed- 
ings supplementarj'  to  execution. 
Barhch  v.  Hermlon,  Circuit  Court 
of  Cook  County,  Illinois,  March 
16,1917. 

Lucas  V.  Moncricff  (Eng.) 
(1905),  21  T.  L.  R.  683.  Plain- 
tiff ^^Tote  a  book  which  was  to  be 
published  by  defendant,  it  being 
agreed  that  the  profits  were  to 
be  shared  equally.  After  publica- 
tion of  several  editions  of  the 
book,  defendant  became  bank- 
rupt. Held:  that  the  agreement 
as  to  sharing  profits  did  not  vest 
the  copyright  in  the  book  in  the 
defendant;  and  that  the  contract 
was  a  personal  one  and  that  there- 
fore defendant's  trustee  had  no 
right  to  reprint  and  publish  the 
book,    (iiijjitk  v.  Tower  Publ.  Co. 


(Eng.)  (1897),75L.  T.  R.  (N.  S). 
330. 

See  in  this  connection:  In  re 
Grant  Richards  (Eng.)  (1907), 
Times,  March  19;  L.  R.  2  K.  B. 
33;  76  L.  J.  K.  B.  643;  96  L.  T. 
712.  Where  the  publisher  had 
secured  the  copyright  and  subse- 
quently became  bankrupt,  the 
author's  only  remedy  was  to  file 
his  claim  for  royalties  against  the 
estate. 

*  Gibson  v.  Carruthcrs  Exchequer 
(Eng.)  (1841),  8  M.  &  W.  321. 

*  Stevens  v.  Bcnning  (Eng.) 
(1854),  6  DeG.  M.  &  G.  223; 
3  Eq.  Rep.  457;  24  L.  J.  Ch.  153; 
1  Jur.  (X.  S.)  74;  3  W.  R.  149. 
Where  an  author  made  a  con- 
tract with  a  publisher,  and  the 
firm  of  the  publisher  was  subse- 
quently changed,  held  that  the 
contract  was  of  a  personal  nature 
and  not  a.ssignable  by  either  party 
without  tlio  other's  consent. 

*  Yerrington  v.   Greene   (1863), 


70 


THE   LAW   OF   MOTION   PICTURES 


A  distinction  must  be  carefully  drawn  between  a  license 
and  an  absolute  assignment  of  a  right.     When  there  is 


7  R.  I.  593.  Chief  Justice  Ames 
speaking  of  this  class  of  contracts 
says:  "The  most  obvious  cases 
are  the  death  of  the  party  to  a 
contract  of  marriage  before  the 
time  fixed  by  it  for  the  marriage; 
the  death  of  an  author  or  artist 
before  the  time  contracted  for  the 
finishing  and  delivery  of  the  book, 
picture,  statue  or  other  work  of 
art.  .  .  ." 

Harrison  v.  Conlan  (1865),  92 
Mass.  85.  Speaking  of  the  rule 
that  a  contract  ordinarily  sur- 
vives death,  the  court  said:  "But 
there  is  an  exception  to  this 
rule  when  the  contract  of  the 
deceased  requires  from  its  na- 
ture, or  for  other  reason  to  be 
performed  by  him  or  to  him  per- 
sonally; as,  if  he  engages  to  com- 
pose a  book  or  to  make  a  paint- 
ing or  engraving,  or  engages  to 
pay  another  during  a  specified 
time  for  attending  on  his  person 
and  for  no  other  service,  .  .  .  his 
death  ends  such  contracts.  ..." 

Martin  v.  Hunt  (1861),  83 
Mass.  418.  "There  is  a  well- 
known  class  of  cases  where  the 
rule  is  different,  and  the  death 
of  one  of  the  parties  discharges 
the  contract  or  excuses  its  further 
performance.     Such  is  the  case 


where  the  engagement  is  of  a 
strictly  personal  character,  re- 
quiring personal  skill  or  ca- 
pacity; as  a  contract  to  write 
books  for  a  piiblisJier  or  a  contract 
by  a  physician  to  cure  a  par- 
ticular disease  and  the  like." 
See  also:  Tasker  v.  Shepherd 
(Eng.),  6  Hurlst.  &  W.  575. 

Williams  on  Executors,  4th 
American  Edition,  p.  1467. 

Lorillard  v.  Clyde  (1894),  142 
N.  Y.  456;  37  N.  E.  489;  Green- 
burg  v.  Early  (1893),  4  Misc. 
(N.  Y.)  99;  23  N.  Y.  Supp.  1009, 
which  hold  that  contracts  for 
personal  services  are  abrogated 
by  the  death  of  the  employer  or 
the  employe. 

Marshal  v.  Broadhurst  (Eng.) 
(1831),  1  Tyr.  349;  1  C.  &  J.  403; 
9  L.  J.  (0.  S.)  Ex.  105.  A  con- 
tract by  an  author  to  write  a 
book  is  purely  personal  and  if 
he  dies  before  its  completion  his 
estate  is  not  liable. 

Gibson  V.  Carruthers  (Eng.) 
(1841),  8  M.  &  W.  343;  11  L.  J. 
Ex.  138.  Where  the  author  be- 
comes bankrui)t  while  under  con- 
tract to  write  a  book,  his  trustee 
has  no  power  to  compel  the  com- 
pletion of  the  work.  '^ 


WHERE  CONTRACT  CONTAINS  A  NEGATIVE  COVBWSV      71 


an  assignment,  the  right  of  the  producer  to  re-assign  is 
unrestricted." 

Section   15. — Where  the  contract  contains  a  negative 
covenant. 
A  negative  covenant  in  a  contract  for  the  \\Titing  of 
literary  works  is  enforceable  in  equity,^  in   the   same 


'  Heap  V.  Ilarllcy  (Eng.)  (1889), 
42  Ch.  D.  4G1.  See  this  case  for 
a  detailed  and  careful  discussion 
of  the  differences  in  rights  con- 
ferred upon  a  licensee  and  those 
conferred  upon  an  assignee. 

The  case  holds  that  the  funda- 
mental difference  lies  in  the  fact 
that  in  the  case  of  a  licensee  (even 
an  exclusive  licensee)  no  right  in 
the  property  itself  is  given  but  a 
personal  license  to  do  an  act 
which  otherwise  would  be  un- 
lawful, while  an  assignment  con- 
stitutes a  grant  conveying  among 
other  things  the  right  to  re-assign. 
See  also:  Landckcr  v.  Wolff 
(Eng.)  (1907),  52  Sol.  J.  45;  Tree 
V.  Bowkelt  (Eng.)  (1896),  74 
L.  T.  77;  Lucas  v.  Cooke  (Eng.) 
(1880),  13  Ch.  D.  872;  Lacy  v. 
Toole  (Eng.)  (1SG7),  15  L.  T.  512. 

^  Stern  v.  Laemmle  (1911),  71 
Misc.  (N.  Y.)  2G2;  133  N.  Y. 
Supp.  1082.  One  Solman  con- 
tracted with  plaintiffs  whereby 
they  acquired  the  exclusive  right 
to  every  song  composed  by  him 


during  a  specified  period.  Solman 
composed  a  song  and  defendants 
copyrighted  and  published  it. 
It  was  held  that  plaintiffs  could 
enjoin  defendants  and  secure 
accounting  of  defendants'  profits 
upon  the  ground  that  under  the 
contract  with  Solman  the  song  be- 
longed to  plaintiffs;  that  plain- 
tiffs could  bring  an  action  in  the 
state  court  to  protect  their  com- 
mon-law rights  and  that  defend- 
ants obtained  nothing  by  their  ap- 
plicationfor  copyright  registration. 
Wahrheit  v.  The  Day  Pub.  Co., 
N.  Y.  Law  Journal,  Jan.  6,  1917. 
This  was  a  motion  for  a  tempo- 
rary injunction.  One  Trufanoff 
was  the  author  of  a  certain  manu- 
script. He  made  a  contract  with 
plaintiff  for  the  publication  of 
the  same  in  its  newspaper,  for 
wliich  plaintiff  paid  him.  There- 
after Trufanoff  made  some  slight 
changes  in  the  manuscript  and 
contracted  for  the  publication  of 
the  same  in  defendant's  news- 
paper.    The  motion  was  granted. 


72 


THE    LAW    OF   MOTION    PICTURES 


manner  as  one  contained  in  the  contract  of  an  actor.  The 
same  rules  with  respect  to  the  unique  and  extraordinary- 
character  of  the  services  contracted  to  be  rendered,  mu- 
tuaHty  of  obhgations  and  remedies  apply.^  The  third 
party  producing  the  work  will  be  enjoined  and  will  be 
compelled  to  account  for  his  profits  derived  from  the 
exploitation  of  the  work.^" 


enjoining  the  defendant  news- 
paper from  publishing  such  manu- 
script and  Trufanoff  from  mak- 
ing any  other  disposition  of  the 
same. 

Morris  v.  Colman  (Eng.)  (1812), 
18  Vesey,  437.  Lord  Eldon  held 
that  a  contract  by  a  dramatist 
with  the  proprietors  of  a  theatre 
not  to  write  plays  for  any  other 
theatre  was  enforcible. 

Stiff  V.  Cassdl  (Eng.),  2  Jurist 
N.  S.  348.  Defendant  Smith 
made  an  agreement  with  plaintiff 
to  write  tales  for  the  plaintiff's 
journal,  and  a  negative  covenant 
to  write  for  no  one  else.  Smith 
then  attempted  to  write  for 
Cassell.  Held  that  such  a  con- 
tract was  enforcible. 

Ward  V.  Bceton  (Eng.)  (1874), 
L.  R.  19  Eq.  207;  23  W.  R.  533. 
PlaintifY  purchased  the  copyright 
of  a  book  from  defendant.  De- 
fendant agreed  to  give  his  whole 
time  to  i)laintiff's  service  and 
not  to  engage  in  any  otlier  busi- 


ness. Defendant  was  restrained 
from  advertising  a  rival  work. 

See  in  this  connection:  Gabriel 
V.  McCabe  (1896),  74  Fed.  (C.  C.) 
743.  Discusses  the  right  of  the 
licensee  to  publish  the  work  in 
an  abridged  form,  and  holds 
that  he  had  made  no  unfair  use 
of  his  license. 

9  See  Sections  30  and  37.  Tarns 
V.  Witmark  (1900),  30  Misc. 
(N.  Y.)  293;  63  N.  Y.  Supp.  721; 
aff'd  48  A.  D.  (N.  Y.)  632;  63 
N.  Y.  Supp.  1117.  It  was  held 
that  it  was  sufficient  in  an  action 
for  infringement  of  property 
rights  in  a  work  where  the  plain- 
tiff derived  title  from  some  third 
party  to  allege  in  the  complaint 
that  plaintiff  duly  acquired  and 
became  the  e.xclusive  owner  of 
the  work.  The  courts  will  not 
treat  such  an  allegation  as  a 
conclusion  of  law. 

^•^  Stern  v.  Lnemmle  (1911),  74 
Misc.  (N.  Y.)  262;  133  N.  Y. 
Supp.  1082. 


WHERE    THE    WORK    IS   TO    BE    SATISFACTORY  73 

Section  16. — Where  the  work  is  to  be  to  the  satisfaction 
of  the  producer. 

Where  the  author  agrees  to  write  a  work  which  shall 
be  satisfactory  to  the  jiroducer,  the  same  rules  of  law- 
apply  which  have  been  enunciated  by  the  courts  in  the 
case  of  ''satisfaction"  contracts  between  actors  and 
producers." 

Section  17. — Where  the  contract  provides  for  the  writing 
of  a  Hbelous,  immoral  or  seditious  work. 
Neither  the  producer  nor  the  author  may  maintain  an 
action  upon  any  contract  which  provides  for  the  writing 
and  reproduction  of  a  work  which  is  to  contain  a  crim- 
inal libel,  immoral  or  seditious  matter.^- 

Section  18. — Where  the  license  granted  is  a  sole  and 
exclusive  one. 

Unless  it  is  expressly  agreed  that  the  license  granted 
shall  be  a  sole  and  exclusive  one,  the  licensor  may  grant 
licenses  to  produce  the  same  play  for  the  same  period 
and  within  the  same  territory  to  any  number  of  persons.'^ 

"See  Section  38.  ^^ Apthorpe    v.    XcviUc    (Eng.) 

Haven    v.    RimseU    (1895),   34  (1907),  Times,  May  31. 
N.     Y.     Supp.     292.       Plaintiff  '' I  I  art  v.  Cor  t  (Idl'S),  SS  Mhc. 

agreed  to  write  a  play  for  defend-  (X.  Y.)  44;  144  X.  Y.  Supp.  627. 
ants    "if    it    proved   satisfactory  Willis    v.     Tibhals    (1871),    1 

to  tliem."    //('/(/  that  as  the  con-  Jones  &  Spencer  (X.  Y.),  220.    A 

tract  involved  fancy,  taste  and  license  given   to  a  pubhsher  to 

judgment,  actual  satisfaction  must  print  and  vend  a  book  upon  a 

be   proved   as  a  condition   prec-  royalty  basis  is  not  a  solo  and 

cdent    to    recovery.  exclusive  license  unless  the  con- 
tract expressly  so  provides. 


74 


THE   LAW    OF   MOTION   PICTURES 


But  where  the  Ucense  is  exclusive,  the  licensee  may  en- 
join any  and  all  third  parties  claiming  through  his  li- 
censor,^'* as  well  as  the  licensor  himself, ^^  from  producing 
the  work  in  the  territory  for  which  the  sole  license  has 
been  granted  to  him. 

Section  19. — Where  the  contract  contains  limitations  as 
to  methods  of  exploitation. 
If  the  contract  provides  that  the  motion  picture  shall 
be  produced  in  a  special  manner  only,  as,  where  the  pro- 
ducer agrees  that  the  film  shall  not  be  shown  without 
the  playing  of  certain  music  written  specially  for  use 
with  the  exhibition  of  the  film,  or  that  the  film  shall  be 
shown  in  none  but  first-class  theatres,  the  licensor  can 

'<  Widmer  v.  Thompson  (1878), 
56  How.  Pr.  (N.  Y.)  91.  Where 
defendant   by   agreement   trans- 


ferred to  plaintiff  the  sole  right 
to  produce  the  play  in  America, 
the  contract  providing  that  unless 
the  play  was  performed  at  least 
fifty  times  within  one  year  from 
the  date  of  the  agreement  and 
forty  times  yearly  thereafter 
the  rights  of  the  j)laintiff  would 
cease,  at  the  option  of  the  de- 
fendant, and  providing  further 
that  upon  the  payment  of  a 
specified  sum  within  a  j'ear  there 
was  to  be  an  absolute  convey- 
ance to  plaintiff,  it  was  held: 

(1)  Plaintiff  succeeded  to  all 
of  defendant's  rights  in  such 
play  in  America. 


(2)  Plaintiff  could  enjoin  de- 
fendant or  any  party  claim 
through  him  from  producing  the 
play. 

Barnett  v.  Q.  &  C.  Co.  (1915), 
226  Fed.  (C.  C.  A.)  935.  An 
"exclusive  license  under  a  patent 
is  a  unique  property  right,  against 
the  destruction  of  which  a  court 
of  equity  will  give  protection  by 
injunctive  relief." 

^5  Watcr77wnv.  Shipman  (1893), 
55  Fed.  (C.  C.  A.)  982.  An  ex- 
clusive licensee  of  a  patent  may 
maintain  an  action  under  the 
patent  laws  where  the  patentee  is 
guilty  of  infringement  and  the 
licensee  may  join  all  other  parties 
who  have  combined  with  his 
patentee  to  infringe  his  rights. 


WORK    TO    BE    PRODUCED    AT   A    DEFINITE   TIME  75 


restrain  any  violation  of  such  covenants.""'  But  in  such 
case  the  Hcensor  does  not  reserve  to  himself  tlic  right 
to  have  a  film  of  his  work  produced  without  the  special 
music  or  in  other  than  first-class  theatres.  ^^ 

Section  20. — Where  the  work  is  to  be  produced  at  a 
definite  time. 

Where  an  author  agrees  to  furnish  the  producer  with 
a  play  or  scenario  on  or  before  a  specified  date,  his  failure 
to  do  so  renders  him  liable  for  whatever  damages  have 
been  sustained  by  the  producer,   and  the  producer  is 


i«//gme  V.  Liebler  (1902),  73 
A.  D.  (N.  Y.)  194;  7G  N.  Y.  Supp. 
702.  An  injunction  will  be 
granted  to  enjoin  the  production 
of  a  play  in  stock  by  stock  coin- 
panics  where  the  contract  pro- 
vides that  the  play  shall  be  pro- 
duced in  none  but  first-class 
theatres. 

See  in  this  connection:  Peple  v. 
Comstock,  N.  Y.  Law  Journal, 
April  27,  1909.  Bischoff,  J.: 
"So  far  as  a  breach  is  alleged  in 
the  original  complaint,  the  al- 
legation proceeds  upon  a  con- 
struction of  the  contract  which 
would  limit  the  defendant's  rights 
in  the  play  to  a  production  by 
himself  as  manager,  the  plaiu- 
tilT's  assertion  being  that  a 
breach  occurred  through  the  de- 
fendant's permitting  the  use  of 
the    play  by   'stock'   companies 


managed  by  other  persons.  Upon 
this  question  I  am  of  the  opinion 
that  the  contract  does  not  bear 
the  construction  for  which  the 
plaintiff  contends.  Express  per- 
mission was  given  the  defendant 
'to  produce  or  have  produced' 
this  dramatic  composition,  and 
the  words  'have  produced'  ob- 
viously extend  to  a  production 
at  the  hands  of  others  for  the 
defendant's  benefit." 

"  FrohmaiiY.  Filch  (1914),  10 1 
A.  D.  (X.  Y.)  231;  149  N.  Y. 
Supp.  033.  Where  the  licensor 
grants  an  exclusive  right  to  pro- 
duce a  play  in  first-class  theatres 
and  in  a  first-class  manner,  he 
does  not  reserve  to  himself  the 
right  to  produce  such  play  in 
second-class  theatres  and  in  a 
second-class  manner. 


76 


THE   LAW   OF   MOTION   PICTURES 


entitled  to  a  return  of  all  moneys  advanced  to  the  author 
under  the  contract.  ^^ 

The  producer,  however,  may  waive  his  right  to  have 
the  finished  work  dehvered  upon  the  specified  day,  and 
after  such  waiver  he  may  not  maintain  an  action  for 
breach  of  contract  before  the  expiration  of  a  reasonable 
time  after  the  giving  of  notice  to  the  author  to  deUver 
the  manuscript.  ^^ 

Where  an  author  is  engaged  to  write  a  play  or  scenario 
and  before  the  completion  of  the  work  the  producer 
abandons  the  project  of  making  a  motion  picture  from 
such  play  or  scenario,  the  author  may  maintain  an  action 


^8  Yeamans  v.  Tannehill  (1891), 
15  N.  Y.  Supp.  958.  Under  a 
contract  by  which  defendant 
agreed  to  write  a  play  for  plain- 
tiffs, it  was  shown  that  the  play 
was  not  completed  in  time,  and 
plaintiffs  brought  their  action 
to  recover  back  the  moneys  ad- 
vanced under  the  contract.  Ver- 
dict in  their  favor  sustained. 

Ward  Lock  &  Co.  v.  Long  (Eng.) 
(1906),75L.  J.  Ch.  732;95L.  T. 
345;  22  T.  L.  R.  798;  2  Ch.  550. 
Here  the  author  furnished  a  story 
of  70,000  words,  instead  of  one 
of  80,000  words  as  agreed.  Held 
a  breach  of  the  contract. 

Gale  V.  Leckie  (Eng.)  (1817),  2 
Stark,  107;  19  R.  R.  692.  Here 
the  author  refused  to  supply  a 
manuscript  after  a  part  of  the 


work  had  been  printed.  It  was 
held  that  the  pubUsher  might 
maintain  an  action  against  him. 
'^Mann  v.  Maurel  (1911),  126 
N.  Y.  Supp.  731.  Defendant 
agreed  to  furnish  plaintiff  with 
a  complete  manuscript  in  a  speci- 
fied month.  Contract  further 
provided  that  any  extension 
granted  to  defendant  to  deliver 
the  play  should  extend  the  time 
for  its  production  for  a  propor- 
tionate period.  Parties  negotiated 
respecting  the  play  after  the  time 
fixed  for  delivery  of  the  manu- 
script. It  was  held  that  plaintiff 
could  not  maintain  an  action  for 
breach  before  the  expiration  of  a 
reasonable  time  after  the  giving 
of  notice  to  defendant  to  deliver 
the  finished  manuscript. 


I'AYMENT   BASED   UPON   A    PERCENTAGE    OF   RECEIPTS      77 

for  the  reasonable  value  of  his  services  without  delivering 
or  tendering  the  manuscript.-" 

If  the  contract  provides  for  the  writing  of  a  number  of 
plays,  and  the  contract  is  not  severable,  and  before  the 
completion  of  the  entire  number  of  plays,  the  producer 
commits  some  breach  of  the  contract,  the  author  may 
maintain  an  action  for  breach  of  the  entire  contract.-^ 

Section  21. — Where  the  payment  to  the  author  is  based 
upon  a  percentage   of  the  gross  receipts   or  net 
profits. 
We  may  have  the  situation  where  a  work  is  sold  for 

reproduction  in  motion  pictures  upon  condition  that  the 


^'^Planche  v.  Colburn  (Eng.) 
(1831),  1  M.  &  Scott,  51;  8  Bing. 
14;  5  Cas.  &  P.  58.  Where  an 
author  was  engaged  to  write  a 
treatise  for  a  periodical  the  publi- 
cation of  which  was  abandoned 
before  the  completion  of  such 
treatise. 

Held  that  tlie  author  was  en- 
titled to  compensation  on  the 
basis  of  quantum  meruit,  without 
delivering  or  tendering  the  treatise. 

Gollancz  v.  Dent  (Eng.)  (1903), 
88  L.  T.  358. 

Thome  v.  French  (1893),  4 
Misc.  (N.  Y.)  430;  24  N.  Y. 
Supp.  694;  aff'd  143  N.  Y.  679;  39 
N.  E.  494. 

^' Clark  V.  West  (1910),  137 
A.  D.  (N.  Y.)  23;  122  N.  Y.  Supp. 


380.  Where  the  contract  provides 
that  B  shall  write  a  book,  take 
out  copyright  in  his  own  name 
and  then  assign  the  copyrigiit  to 
A  for  all  of  which  A  agrees  to 
pay  B,  it  is  a  breach  of  the  con- 
tract for  A  to  take  out  copyright 
in  his  name  in  the  book. 

Where  B  agrees  to  wTite  five 
books  for  A  and  A  agrees  to  pay 
B  specified  compensation  upon 
publication  of  such  books,  B 
having  written  and  delivered  to 
A  one  book  refuses  to  write  or 
deliver  balance  because  of  some 
breach  of  the  contract  by  A. 
Held  that  B  may  sue  for  breach 
of  entire  contract,  contract  not 
being  severable,  and  secure  dam- 
ages for  such  breach. 


78  THE    LAW  OF  MOTION   PICTURES 

author  receive  in  lieu  of  all  compensation  a  percentage  of 
the  gross  receipts  or  net  profits.  If  there  is  no  time  limit 
within  which  the  film  is  to  be  made  and  exhibited,  the 
author  is  entitled  to  have  the  work  reproduced  and  ex- 
hibited within  a  reasonable  time.  Should  the  producer 
fail  to  do  so,  the  author  may  either  rescind  the  contract  of 
sale  or  sue  for  damages  for  breach  of  the  contract  and 
recover  the  reasonable  value  of  the  work  for  motion 
pictures.  If  the  agreement  provides  for  the  exhibition  of 
the  motion  picture  within  a  specified  time  the  same 
principles  apply." 

Difficulty,  however,  is  encountered  in  fixing  the  value 
of  a  Hterary  work  for  motion  pictures.  It  is  almost  always 
problematical  whether  a  work  will  be  successful  when 
reproduced  in  motion  pictures.  The  play  itself,  the  stag- 
ing thereof,  the  acting  of  the  performers  who  participate 
in  its   creation,   the   character  of  the  advertising,   the 

^^  Bobbs-Merrill  Co.  v.  Univer-  of  such  failure  the  contract  was 
sal  Film  Mfg.  Co.  (1916),  160  terminated  and  all  rights  granted 
N.  Y.  Supp.  37.  Plaintiff  licensed  to  defendant  reverted  to  it. 
defendant  to  make  ])hotoplays  Court  granted  injunction  re- 
from  three  books,  defendant  agree-  straining  defendant  from  assert- 
ing to  pay  a  specified  percentage  ing  any  rights  under  the  con- 
of  the  gross  receipts  and  paying  tract. 

an  advance  upon  such  royalties  While  v.  Constable  &  Co.  (Eng.) 

of  a  specified  sum.     Defendant  (1901),    Times,    March    23.      A 

further    agreed    to    prodTice    the  failure  to  publish  a  book  upon 

motion      pictures     within      nine  the  date  fixed  by  the  contract 

months  after  the  signing  of  the  renders  the  publisher  liable  for 

contract.      Defendant    failed    to  damages     resulting     from     such 

produce    the    films    within    the  delay.    But  see  Kerkcr  v.  Lcderer 

specified     period     and     plaintiflf  (1900),  30  Misc.  (N.  Y.)  651;  64 

notified  defendant  that  because  N.  Y.  Supp.  506. 


WHERE   THE    AMOUNT   IS   GUARANTEED  79 

methods  of  release  are  some  of  the  elements  that  must 
be  taken  into  account.  Courts  are  reluctant  to  permit 
juries  to  fix  the  value  of  such  rights,  unless  definite  and 
concrete  evidence  of  the  value  of  such  rights  with  respect 
to  the  work  in  (lue.stion  is  adduced.-^ 

If,  however,  the  work  has  been  reproduced  in  motion 
pictures  and  the  producer  fails  or  refuses  to  continue  its 
exploitation,  evidence  showing  how  the  motion  picture 
was  received,  how  the  newspapers  treated  its  production, 
criticism  of  the  press,  the  gross  rentals  on  account  of 
exliibitions  of  the  film,  are  all  proper  elements  upon  which 
the  jury  can  base  an  estimate  of  the  value  of  the  motion 
picture  rights  of  the  work.-^ 

Section  22. — Where  the  amount  to  be  paid  to  the  author 

is  guaranteed. 

The  agreement  may  guarantee  a  specified  amount  as 

the  author's  share  within  a  certain  period.    If  the  film  is 

not  reproduced  and  exploited  during  the  period,  or  if  the 

^^  Lerison    v.    Oes    (1917),    98  theatre.    The  play  was  a  failure. 

Misc.  (N.  Y.)  260;  Wakeman  v.  On   the   trial   of   an   action   for 

Wheeler  (1886),  101  N.  Y.  205;  breach  of  the  contract,  the  court 

4  N.  E.  264;  Bermtein  v.  Meech  lield    that    plaintiff    could  show 

(1891),  130  N.  Y.  354;  29  N.  E.  how  the   play  was  acted,  what 

255;  Benyaker  v.  Scherz  (1905),  the  audience  said  and  did,  how 

103  A.  D.  (N.  Y.)  192;  92  N.  Y.  the  newspapers  treated  its  pro- 

Supp.  1089;  Neio  York  Academy  duction,  and  the  criticism  of  the 

of  Music   V.    Hackett    (1858),   2  press,   and    whether    the   actors 

Hilt.  (X.  Y.)  217.  were   called   before  the   curtain, 

■*  Ellis    V.    Thompson    (1896),  and     how     many     times,     and 

1  A.  D.  (N.  Y.)  606;  37  N.  Y.  whether     there     was     applause. 

Supp.    468.      Defendant    aRreed  Charley    v.    Poithoff    (19a3),    95 

to  produce  a  play  in  a  first  class  N.  W.  124. 


80  THE    LAW   OF   MOTION   PICTURES 

author's  share  of  the  receipts  or  profits  during  such  period 
is  less  than  the  guaranteed  amount,  then  the  author  may 
recover  an  amount  which,  when  added  to  the  sum  that 
he  has  received,  will  equal  such  guarantee. 

Section  23. — ^Where  the  payment  to  the  author  is  a  stipu- 
lated amount  per  performance  or  per  period. 

Contracts  have  frequently  been  made  for  production  of 
plays  upon  the  stage  whereby  the  producer  has  agreed  to 
pay  to  the  author  a  stipulated  amount  for  each  per- 
formance. It  has  been  held  that  where  the  producer  has 
agreed  to  exploit  the  play  for  a  specified  period,  the  author 
may  recover  for  the  entire  period  at  the  stipulated  amount 
per  performance,  whether  the  play  had  been  produced 
during  such  period  or  not.  The  same  appHes  where  the 
payment  is  made  upon  the  basis  of  a  specified  amount 
per  week  or  other  period.-^     If  the  producer  does  not 

^'^  Thorne  v.  French  (1893),  4  denied  but  plaintiff  was  permitted 

Misc.    (N.    Y.)    436;   24   N.   Y.  to  recover  $2,000  damages. 

Supp.  694.     Plaintiffs  owned  the  (2)  Held  also  that  as  defendants 

opera  "The  Maid  of  Plymouth,"  had    announced    their    intention 

and  agreed  to  give  defendant  the  not  to  go  on  with  the  contract, 

performing  rights  during  a  speci-  plaintiff  was  absolved  from  the 

fied    time.      The    latter    was    to  necessity   of   tendering   pcrform- 

produce    it    after    February    13,  ance. 

1892.  After  that  date  defendant  Daly  v.  Stetson  (1890),  118 
did  not  produce  the  opera  but  N.  Y.  269;  23  N.  E.  369.  Plaintiff 
permitted  Hiohard  Mansfield  to  had  contracted  to  soil  to  de- 
play  in  repertoire  at  his  theatre,  fondant  the  exclusive  right  to 
Plaintiff  sought  to  otijoin  him  give  performances  of  "Pique" 
from  using  his  theatre  for  that  and  "Divorce"  for  thirty  con- 
purpose.    (1)  The  injunction  was  secutive  weeks  for  $200  a  week. 


WHERE    PAYMENT   TO    AUTHOR    IS    PER    PERIOD  Si 

obligate  himself  to  produce  the  play  for  a  deliuitc;  jxTiod, 
he  is  only  lialjle  to  pay  for  actual  performances.'-''' 


He  produced  these  plays  for 
five  weeks,  then  ceivsed  douig  so. 
Plaintiff  sued  for  the  balance 
due  for  25  weeks  amounting  to 
$5,000.  Held  that  plaintiff  was 
entitled  to  recover  as  it  was  a 
breach  of  the  contract. 

'•^  Kennedy  v.  Rolfe  (1916),  174 
A.  D.  (X.  Y.)  10;  160  N.  Y. 
Supp.  93.  Plaintiff  contracted 
with  defendant  to  write  a  sketch 
for  him  which  the  latter  was  to 
produce  in  vaudeville.  The  con- 
tract provided  that  plaintiff  was 
"to  be  paid  a  royalty  of  S25  a 
week  per  each  playing  week  for  a 
period  of  70  weeks." 

Held  that  this  did  not  amount 
to  a  guarantee  of  70  weeks,  and 
a  verdict  in  pUiintiff's  favor  was 
reversed  and  complaint  was  dis- 
missed. 

Schonberg  v.  Cheney  (1875), 
3  Hun  (N.  Y.),  677.  Defendant 
owned  a  theatre.  He  contracted 
with  plaintiff  to  produce  a  play 
to  be  written  by  the  latter,  and 
to  pay  him  S20  for  each  per- 
formance. Since  the  contract, 
however,  only  specified  one  date. 
May  7th,  as  the  date  of  per- 
formance, and  there  was  no 
other   provision   or   extension   it 


was  held  that  plaintiff  could  not 
recover  inc^-e  than  ?20. 

See  in  this  connection:  St.  Cyr 
V.  Sotfiern  &  Marlowe  (1910), 
140  A.  D.  (N.  Y.)  888;  125  N.  Y. 
Supp.  10.  A  contract  was  made 
between  the  parties  to  the  action 
for  the  production  by  the  de- 
fendants of  a  play  owned  by  plain- 
tiff. The  contract  provided  that 
the  defendants  pay  to  plaintiff 
the  sum  of  one  thousand  dollars 
as  advance  royalties,  the  said 
sum  to  be  forfeited  to  plaintiff 
if  the  play  was  not  produced 
witliin  one  year  from  the  date 
of  the  contract.  The  contract 
also  contained  a  clause  that  the 
defendants  would  give  thirty 
public  performances  during  the 
first  year  for  which  performances 
the  plaintiff  was  to  receive  a 
minimum  of  S50  per  performance. 
The  contract  was  for  a  term  of 
five  years.  Plaintiff  contended 
that  under  the  contract  she  was 
entitled  to  a  minimum  of  SI, 500 
a  year,  thirty  jjcrformances  at 
fifty  dollars  each  for  a  period  of 
five  years.  Contract  construed. 
Held  that  the  guaranty  clause 
was  to  be  construed  together 
with    the    forfeiture    clause    and 


82 


THE   LAW   OF  MOTION    PICTURES 


The  author  is  entitled  to  his  royalties  for  performances 
of  his  work  whether  such  performances  were  given  by 
the  producer  with  whom  he  contracted  or  by  the  pro- 
ducer's hcensee.-^  A  producer  will  not  be  permitted  to 
set  up,  as  a  defense,  in  an  action  for  royalties,  the  in- 
vaUdity  of  the  author's  copyright.-^ 


upon  defendant's  failure  to  pro- 
duce the  play,  they  forfeited 
the  11,000  paid  to  plaintiff  but 
were  not  liable  for  any  other 
sum. 

^'' Neufeld  v.  Cha-pman  (Eng.) 
(1901),  Times,  Oct.  31.  Plaintiff 
assigned  copyright  in  his  book  to 
defendants  who  agreed  to  pay 
him  a  percentage  on  the  published 
price  of  all  copies  sold  beyond 
a  specified  number.  Held  that 
plaintiff  was  entitled  to  royalties 
upon  all  copies  of  magazines  sold 
wliich  contained  his  work  in 
serial  form,  the  published  price 
to  be  estimated  by  taking  a  part 
of  the  published  price  of  the 
magazine  in  proportion  to  the 
space  taken  up  therein  by  the 
selection  from  plaintiff's  book. 

But  see:  Nichols  v.  A7nal- 
(famated  Prens  (Eng.)  (1908), 
C.  A.  May  12.  Whore  the  pul)- 
ILsher  was  the  sole  owner  of  the 
copyright  under  a  contract  whicli 
contained  no  limitations,  he  could 
not  be  compelled  to  i)ay  royalties 


for  the  publication  of  the  work 
by  a  third  party,  even  though 
made  with  the  pubUshers'  ap- 
proval. 

^«Nilsson  V.  De  Haven  (1900), 
47  A.  D.  (N.  Y.)  537;  62  N.  Y. 
Supp.  506;  aff'd  168  N.  Y.  656; 
61  N.  E.  1131. 

Hart  V.  Fox  (1917),  N,  Y.  Law 
Journal,  August  24th.  "He  se- 
cured a  license  from  the  plaintiff 
and  cannot  be  heard  to  impeach 
his  title." 

See  in  this  connection:  Sea 
Gull  Specialty  Co.  v.  Humphrey, 
Humphrey  v.  Sea  Gull  Specialty 
Co.  (1917),  242  Fed.  (C.  C.  A.) 
272;  affirming  the  judgment  upon 
the  opinion  of  the  court  be- 
low. 

The  following  opinion  was 
filed  in  the  court  below: 

In  this  case  defendant  was  using 
certain  patxMited  box-making  ma- 
chines under  a  license  from  plain- 
tiff and  owed  royalties.  Another 
c(mcern,  using  an  infringing  ma- 
chine, invaded  its  territory  and 


WHERE    AMOUNT   OF   DAMAGES    IS    STIPULATED 


83 


Section  24.— Where  the  amount  of  damages  in  the  event 
of  a  breach  is  stipulated. 
If  the  parties  fix  a  stipulated  amount  as  damages  in 
the  event  of  the  failure  of  one  to  deliver  the  finished 
manuscript  or  the  other  to  reproduce  and  exhibit  the 
work  on  or  before  a  specified  date,  the  courts  will  permit 
a  recovery  of  the  amount  j&xed  by  the  parties  as  their 
damages.  2^ 


succeeded  in  taking  away  de- 
fendant's largest  customer  by 
underbidding  its  prices.  De- 
fendant retained  the  machines, 
but  declined  to  pay  royalties, 
on  the  ground  plaintiff  was  obli- 
gated to  prevent  competition, 
and  the  loss  on  sales  amounted 
to  more  than  the  royalties  due. 
I  sustained  a  demurrer  to  the 
jurisdiction  of  the  court,  and  while 
the  matter  was  pending  in  the 
Supreme  Court  on  appeal  the 
parties  compromised  and  settled 
all  of  their  differences,  except 
the  question  of  the  amount  of 
royalties  due.  The  judgment 
dismi-ssing  the  bill  was  re- 
versed. 

The  bill  prayed  for  an  injunc- 
tion, for  cancellation  of  the  li- 
cense and  the  return  of  the  ma- 
chines, and  for  an  accounting. 
Those  questions  are  now  out 
of  the  case,  but  the  (juestion  as 
to  the  royalties  is  before  me.    Had 


the  defendants'  territory  been 
invaded  by  a  licensee  of  plaintiff, 
or  by  one  allowed  to  infringe  by 
connivance  of,  or  agreement  with, 
plaintiff,  a  different  question 
might  be  presented.  The  license 
did  not  guarantee  defendant 
against  loss  by  the  competition 
of  infringers.  The  subsequent 
correspondence  did  not  amend 
the  contract,  or  create  an  es- 
toppel to  claim  royalties  already 
earned.  The  greatest  right  de- 
fendant could  have  exercised 
under  the  circumstances  was  to 
abandon  the  contract  after  notice 
to  plaintiff  and  its  failure  to 
vigorously  prosecute  the  in- 
fringers, but  that  course  was  not 
adopted. 

There  will  be  a  decree  in  favor 
of  plaintiff  for  83,786.18  and  for 
costs. 

^  Conreid  Metropolitan  Opera 
V.  Brin  (1910),  60  Misc.  (X.  Y.) 
282;  123  N.  Y.  Supp.  6. 


84 


THE    LAW   OF   MOTION   PICTURES 


Section  25. — Where  the  contract  provides  for  a  forfeiture 
upon  failure  to  pay  the  royalties  due. 
The  producer  may  fail  or  refuse  to  pay  the  royalties 
due  an  author  on  account  of  the  exhibition  of  the  film. 
If  the  contract  provides  for  the  forfeiture  of  all  rights 
by  the  producer  upon  his  failure  to  pay  the  royalties 
when  they  become  due  the  author  by  giving  the  producer 
the  notice  required  by  the  contract  between  them,  re- 
vokes all  the  rights  granted  to  the  producer  and  may 
enjoin  him  from  making  further  use  of  the  film  should  he 
attempt  to  do  so.^°    He  may  also  maintain  an  action  at 


^^  Arden  v.  Lubin,  N.  Y.  Law 
Journal,  Mch.  2,  1916.  Cohalan, 
J.:  "Action  for  an  injunction  and 
an  accounting.  The  plaintiff,  an 
actor  and  dramatist,  entered  into 
an  agreement  with  the  defendant 
Lubin  whereby  the  latter  agreed 
to  present  certain  plays  by 
means  of  motion  pictures  in  con- 
sideration whereof  Lubin  agreed 
to  pay  the  plaintiff  a  certain 
fixed  sum  as  an  actor,  and  further 
agreed  to  pay  him  a  royalty  of 
twenty  per  cent  of  the  gross 
sales  or  rentals  and  extra  charges 
of  whatsoever  name  and  nature 
to  be  derived  by  the  defendant 
Lubin  from  the  exploitation  and 
distribution  of  the  motion  pic- 
tures in  America.  One  play 
under  this  agreement  was  pro- 
duced. It  is  admitted  in  the 
answer   that   the   plaintiff   com- 


plied with  all  the  terms  and  condi- 
tions of  the  contract  on  his  part 
to  be  performed.  The  plaintiff 
however  alleges  that  the  de- 
fendants violated  the  agreement 
by  (1)  failing  to  present  all  the 
plays,  (2)  failing  to  send  stipu- 
lated statements,  (3)  failing  to 
make  payments  of  royalties  at 
times  fixed  in  the  agreement, 
and  (4)  failing  to  render  true 
statements  and  pay  full  amounts 
of  the  royalties  as  provided  for 
in  the  agreement.  The  contract 
provided  that  statements  and 
payments  should  be  made  com- 
mencing on  the  first  day  of  Au- 
gust, 191 1,  and  continuing  quar- 
terly thereafter.  It  appears  that 
no  statement  was  rendered  on 
that  date  and  no  quarterly  state- 
ments were  rendered  either  on 
the  first  day  of  November,  1914, 


WHERE    CONTRACT   PROVIDES    FOR   A    FORFEITURE       85 


law  for  the  royalties  which  have  become  due.  ^\^le^e 
the  contract  does  not  contain  a  forfeiture  clause,  or  wliere 
the  payment  is  not  made  a  condition  of  the  grant,  the 
failure  to  pay  royalties  does  not  terminate  the  producer's 


nor  on  the  first  day  of  February, 
1915,  nor  the  first  day  of  May, 
1915.  In  fact,  the  first  statement 
and  check  were  received  after 
the  26th  day  of  July,  1915.  I 
am  satisfied  that  the  failure  to 
send  these  statements  and  pay 
the  royalties  thereunder  within 
the  time  fixed  by  the  agreement 
was  a  breach  sufficient  to  warrant 
the  termination  of  the  agree- 
ment [Ilenehj  v.  Stark,  128 
N.  Y.  Supp.  70 1 ;  Weber  v.  Mapes, 
98  A.  D.  (N.  Y.)  165].  Further- 
more, the  plaintiff  contends  that 
he  is  entitled  to  twenty  per  cent  of 
the  gross  income  derived  by  the 
defendants  from  the  pictures 
without  any  deduction.  The  de- 
fendant Lubin  asserts  that  he  is 
only  accountable  for  twenty  per 
cent  of  the  gross  profit  and  rentals 
which  actually  came  into  his 
hands.  The  contract,  however, 
provides  that  the  plaintiff  was 
to  receive  twenty  per  cent  of  the 
gross  sales  and  therein  the  words 
'profits'  or  'expenses'  are  not 
mentioned.  In  a  word,  the  de- 
fendants claim  that  they  should 
be  permitted  to  deduct  from  the 


gross  sales  derived  from  the  pic- 
ture the  expenses  paid  in  exploit- 
ing the  same.  I  am  of  the 
opinion  that  the  contract  shows 
that  it  was  the  defendant's  duty 
to  exploit  the  picture  and  that 
the  charges  therefor  were  not  to 
be  borne  by  plaintiff.  Judgment 
for  the  plaintiff." 

On  the  question  of  waiver  of 
right  of  forfeiture,  see:  Barnett  v. 
Q.  &  C.  Co.  (1915),  226  Fed. 
(C.  C.  A.)  935.  "A  reser\'ed 
right  of  forfeiture  for  breach  of 
an  obligation  may  be  waived 
before  breach  by  an  act  or  dec- 
laration inducing  the  licensee  to 
continue  in  the  performance  of 
its  obligations  and  upon  which 
it  was  reasonably  justified  in 
relying  as  showing  an  intent  to 
suspend  the  exercise  of  the  right." 

Savage  v.  XecUj  (1S96),  8 
A.  D.  (N.  Y.)  316;  40  N.  Y.  Supp. 
946.  See  on  question  of  defend- 
ant's examination  before  trial, 
where  action  is  brought  by  an 
author  against  a  publisher  for 
an  accounting  of  sales  where 
author  is  entitled  to  a  specified 
royalty  upon  copies  sold. 


86 


THE    LAW   OF   MOTION    PICTURES 


rights. ^^    The  author  still  has  his  remedy  at  law  for  the 
royalties  which  have  become  due.^-    It  may  also  be  noted 

and  the  defendant  refuses  to  pay 
the  stipulated  royalties,  the  au- 
thor's remedy  is  an  action  at  law 


'^Kerker  v.  Lederer  (1900),  30 
Misc.  (N.  Y.)  651;  64  N.  Y. 
Supp.  506.  The  action  was 
brought  by  the  composers  of 
"The  Belle  of  New  York,"  to 
restrain  the  defendants  from 
producing  the  musical  comedy 
and  to  compel  defendants  to  ac- 
count for  royalties  alleged  to 
be  due  them.  Defendants  failed 
to  give  the  notice  required  by 
the  contract  in  order  to  secure  a 
renewal  of  the  performing  rights 
for  the  theatrical  season  during 
which  they  were  producing  the 
play.  Held  that  by  accepting 
royalties,  plaintiffs  waived  this 
provision  of  the  contract.  It 
was  held  further  that  upon  their 
failure  to  pay  the  royalties,  de- 
fendant's rights  were  not  ter- 
minated as  the  contract  con- 
tained no  forfeiture  clause  and 
finally  that  it  was  doubtful 
whether  plaintiffs  had  a  cause  of 
action  in  equity,  the  court  in- 
timating that  the  proper  form  of 
action  was  one  at  law  for  royalties 
due. 

Karst  V.  Prang  Educational 
Co.  (1909),  132  A.  D.  (X.  Y.)  197; 
116  X.  Y.  Supp.  1049.  Where 
the  copyright  iti  a  wf)rk;  was 
in    the  defendant,    a    publisher, 


and  not  one  in  equity. 

^2  Moore  v.  Coyne  (1906),  113 
A.  D.  (N.  Y.)  52;  98  X.  Y.  Supp. 
892.  When  a  state  court  of 
equity  will  refuse  '  to  entertain 
jurisdiction  of  an  action  for 
breach  of  a  contract  to  pay 
royalties. 

"The  contract  simply  provides 
for  the  payment  of  royalties 
upon  a  patented  article  if  manu- 
factured or  sold,  and  if  the  same 
have  been  manufactured  or  sold 
under  the  contract,  then  this 
gives  the  plaintiff  the  right,  7iot 
to  an  accounting,  but  to  the 
royalties  stipulated  to  be  paid, 
for  which  an  action  at  law  may 
be  maintained.  .  .  ." 

Gollancz  v.  Dent  &  Co.  (Eng.) 
(1903),  88  L.  T.  358.  Where  an 
author  is  engaged  to  edit  a  work 
upon  a  royalty  basis  the  remedy 
for  the  breach  of  the  contract 
in  refusing  to  permit  him  to  edit 
the  book  is  an  action-at-law  for 
damages. 

McCullough  V.  Pence  (1895), 
85  Hun  (X.  Y.),  271;  32  N.  Y. 
Supp.  9S().  "It  is  not  of  every 
action  in  which  it  is  necessary  to 


WHERE   MANUSCEIPT   IS    LOST   Oil    CONVERTED  S7 

here  that  where  the  contract  provides  that  the  license 
siiall  be  contingent  upon  the  giving  of  a  specified  nunilxT 
of  performances  during  specified  periods,  a  failure  to  give 
such  required  number  of  performances  will  terminate 
the  license. 

To  sum  up,  if  the  contract  specifies  a  definite  date  f(jr 
the  reproduction  of  the  work,  or  no  time  is  mentioned,  and 
the  work  must  be  reproduced  within  a  reasonable  time, 
a  breach  of  such  provision  of  the  contract  gives  the  author 
the  right  to  rescind.  If,  however,  the  only  breach  of  the 
contract  is  the  failure  to  pay  the  compensation  therein 
provided,  and  pajTnent  is  not  made  a  condition  of  the 
grant,  a  breach  gives  the  author  nothing  more  than  a  right 
of  action  at  law  for  his  compensation. 

Section   26. — Where   manuscript   is   lost   or   converted 

after  submission  to  the  producer. 

There  is  a  good  consideration  to  the  producer  when  a 

manuscript  is  submitted  to  liim,  namely,  the  opportunity 

of  reading  the  manuscript.     For  that  reason  he  is  not 

take  an  account  that  equity  has  In  the  case  at  bar  there  was  not 

jurisdiction.       There     must     be  the    semblance     of     any     trust, 

something  more  than  the  mere  The  action  is  brouglit  to  enforce 

right  to  an  account.     It  would  a  mere  contract  obligation  to  pay 

seem  that,  there  must  be  some  royalties,    and    the    only    final 

trust    or    fiduciary    relation    be-  judgment    would    be    a    money 

tween    the    parties    in    order    to  judgment.    The  defendant  in  an 

justify   a   resort   to   a   court   of  action  at  law,  could  have  a  refer- 

equity  or  a  decree  for  an  account-  ence    to    take    the    accounts,    if 

ing.     Even   the   existence   of   a  necessary,  and,  if  a  discovery- was 

bare    agency    is    not    sufficient,  needed,    an    examination    before 

Marvin  v.  Brooks,  94  N.  Y.  71.  trial  was  open." 


88  THE    LAW    OF  MOTION   PICTUBES 

a  gratuitous  bailee  and  will  be  liable  to  the  author  for  its 
value  if  the  same  is  lost  through  his  or  his  employes'  neg- 
ligence.^^ But  where  the  manuscript  is  submitted  solely 
for  criticism  and  advice,  there  is  a  gratuitous  bailment 
and  no  Hability  attaches  in  the  absence  of  gross  negli- 
gence.^^ In  the  case  of  a  conversion  of  the  manuscript,  the 
author  is  entitled  to  recover  its  value,  and  he  may  enjoin 
the  possessor  from  pubUshing  the  same  and  compel  him 
to  deliver  it  up.^^ 

Section  27. — Where  the  work  is  secured  by  means  of  a 
prize  contest. 

Where  a  producer  offers  a  prize  for  any  story  or  scenario 
submitted  to  him  which  he  will  accept  and  reproduce,  the 
producer's  rights  are  limited  to  the  reproduction  and  exploi- 
tation of  the  work  in  motion  pictures,  unless  the  offer  specifi- 
cally provides  that  the  prize  will  be  given  upon  condition 
that  all  rights  in  the  accepted  work  shall  vest  in  him.^^ 

^^  Stone  V.  Long  (Eng.)  (1903),  to  his  customer  and  the  plates 

the  Author,  Nov.  issue.  were  lost.    Held  that  the  printer 

^* Adams  v.  Grossynith   (Eng.)  was  a   "gratuitous  bailee"   and 

(1911),  Times,  March  9.     An  au-  that  the  fact  of  the  loss  did  not 

thor  who  submits  his  play  to  an  raise    any    presumption    on    his 

actor  for  criticism  and  advice  has  part  of  negligence, 
no  claim  for  the  loss  of  the  manu-  '*  Alexander  v.  Manners  Sutto7i 

script  unless  the  actor  has  been  (Eng.)  (1911),Timcs, March  28. 
guilty  of  gross  negligence.     The  '**  Ketelbcy    v.    Maggelt    (Eng.) 

actor  is  a  gratuitous  bailee.  (1911),  Times,  Feb.   8.     Where 

Bullen   v.    The  Sioan   Electric  a  musical  composition  was  sub- 

(Eng.)  (1906),  Times,  Fcl).  8,  22  mitted    in   a   prize   contest   and 

T.  L.   R.  275.     No  liabihty  at-  the  condition  of  the  contest  was 

tached  to  a  printer  who  stored  that  the  jnibhsher  would  publish 

without  cliarge  plates  belonging  and  sell  the  accepted  work  it  was 


PURCHASER    NOT    REQUIRED    TO    REPRODUCE    WORK      89 


Section  28. — On  the  question  whether  an  outright  pur- 
chaser is  required  to  reproduce  the  work. 
A  producer  purchasing  outright  motion  picture  ma- 
terial is  not  required  to  reproduce  the  same  unless  he  has 
contracted  to  do  so." 


held  that  there  was  no  implied 
condition  that  the  winner  would 
assign  tlie  copyright  in  the  work 
to  the  publisher. 

"  In  Morang  &  Co.  v.  Le 
Sueur  (Can.)  (1911),  45  Can.  Sup. 
Ct.  95.  An  author  sold  his  manu- 
script outright  to  a  publisher. 
There  was  no  undertaking  on 
the  part  of  the  publisher,  con- 
tained in  the  agreement,  to  pub- 
lish the  work.  Upon  the  failure 
of  the  publisher  to  print  and  sell 
the  work  the  author  brought  an 
action,  after  tendering  back  the 
amount  he  received  in  payment, 
to  recover  the  manuscript.  It 
was  held  by  a  divided  court  that 
in  the  case  of  a  sale  of  a  manu- 
script by  an  author  to  a  pub- 
lisher, there  was  implied  an  agree- 
ment on  the  part  of  the  publisher 
to  publish  and  upon  his  failure 
so  to  do,  the  author  upon  tender- 
ing the  purchase  money,  was  en- 
titled to  secure  back  his  manu- 
script. 

In  a  strong  dissenting  opinion 
Judge  DufT  takes  issue  with  the 
decision   of    the   majority    court 


and  what  we  believe  is  the  more 
logical  position.     He  says: 

"...  It  seems  to  me  that  it 
was  necessary  for  the  adequate 
protection  of  the  publisher  and 
of  its  enterprise  that  it  should, 
on  payment  of  the  stipulated 
price,  acquire  the  author's  entire 
interest  and  property  in  the 
manuscript  which  he  was  em- 
ployed to  produce,  with  all 
rights  which  such  proprietorship 
carries,  including  that  of  with- 
holding the  book  from  publica- 
tion (quoting  case)  otherwi.se  the 
publisher  might  find  that  it  had 
brought  about  the  production 
of  a  work  which  it  could  not  make 
use  of,  but  which  might  be  used 
by  the  author  very  much  to  its 
detriment. 

There  can  be  no  doubt  that 
the  parties,  contemplating  no 
event  except  publication,  in- 
tended that  for  the  S500,  to  be 
paid  to  the  author,  the  defendant 
company  should  acquire  all  his 
rights  in  the  book  he  was  em- 
ployed to  write — his  comm(Mi-la\v 
literary    property    iu    it    before 


90 


THE    LAW   OF   MOTION   PICTUKES 


Section  29. — On  the  question  whether  the  producer  is 
entitled  to  a  refund  of  advance  payment. 
If  a  license  is  granted  for  a  specified  period  and  an 
advance  payment  is  made  on  account  of  royalties  payable 
to  the  author  under  such  license,  the  producer  may  not 
maintain  an  action  against  the  author  upon  the  termina- 
tion of  the  contract  period  for  any  part  of  the  advance 
which  has  not  been  earned  unless  the  contract  expressly 
provides  for  such  refund. 

Section  30. — On  the  question  whether  the  contract  may 
be  rescinded  where  the  author  made  a  poor  bargain 
or  where  fraud  is  involved. 

The  fact  that  the  author  in  granting  a  hcense  or  making 

profit.  For  his  literary  fame  he 
depends  on  publication.  But  it 
is  quite  consistent  with  the  con- 


publication,  and  his  right  to 
statutory  copyright  upon  publi- 
cation. Both  parties  expected 
that  the  plaintiff  would  succeed 
in  producing  a  work  of  such 
character  and  merit  that  the 
defendant  would  publish  it.  Both 
took  some  risk  at  this  point — the 
defendant  took  the  risk  of  in- 
vesting its  $500  in  an  unsuitable 
book — the  plaintiff  the  risk  of 
failing  to  secure  the  opportunity 
of  enhancing  his  literary  reputa- 
tion which  the  pul)lication  of  his 
work  might  be  expected  to  afford. 
I  appreciate  the  observation  of 
Tendal,  C.  J.,  in  Planche  v.  Col- 
burn  that  an  author  is  actuated 
by  the  desire  for  literary  n^puta- 
tion   as    well    as    for    pecuniary 


tract  now  under  discussion,  re- 
viewed in  the  light  of  all  the  cir- 
cumstances surrounding  it,  that 
the  author  refrained  from  stipu- 
lating for  publication,  or  in  the 
alternative  for  the  return  of  his 
manuscript  and  the  right  to  have 
it  pul)lishe<l  otherwise,  because 
he  relied  upon  his  ability  to  pro- 
duce a  book  of  which  the  defend- 
ant's own  business  interests 
would  ensure  the  publication, 
and  he  was  prepared  to  take  the 
risk  of  the  defendant  suppressing 
it." 

See    also:    Copingor    "  r>aw    of 
Copyright,"  4th  Edition,  p.  7U3. 


WHETHER   CONTRACT   MAY    BE    RESCINDED  91 

an  outright  sale  had  made  a  poor  bargain,  does  not  en- 
title him  to  rescind  the  contract,  unless  fraud  has  been 
practiced  upon  him.^^  And  in  the  case  of  fraud  he  must 
tender  back  the  benefits  received  by  him  before  revoking 
the  hcense  or  rescinding  the  sale.^'-* 

Section  31.— On  the  question  whether  the  contract  may 
be  rescinded  where  the  producer  made  a  poor  bar- 
gain or  fraud  is  involved. 
The  same  rules  apply  to  a  motion  picture  producer. 
He  may  not  rescind  the  contract  because  he  had  paid  too 
much  for  the  rights;  nor  may  he  set  up  as  a  defense  in  an 
action  to  recover  royalties  that  he  has  been  induced  to 
enter   into   the   contract    tlirough   fraud   and   misrepre- 
sentation without  alleging  that  he  has  surrendered  the 
license   and   the   benefits  received   by   him   under   the 
hcense.  ^° 

^»  Hackett  v.  Waller  (1913),  80  received  by  him  under  the  con- 

Misc.    (N.  Y.)   340;   142   N.   Y.  tract  of  sale. 

Supp.  209.    Here  it  was  held  that  ^''Oulcaull  v.   Bonheur   (1907), 

the  court  was  not  authorized  to  120  A.  D.  1G8;  104  X.  Y.  Supp. 

rescind  a  sale  because  the  author  1099.    A  defense  to  an  action  to 

used  poor  judgment  in  securing  a  recover  royalties  for  the  use  of  a 

small  amount  for  his  work.  play   which  alleges   that   the  li- 

^Ulnckdl  V.  Waller  (1913),  SO  censee  was  induced  to  enter  into 
Misc.  (N.  Y.)  340;  142  N.  Y.  the  contract  by  fraud  and  mis- 
Supp.  209.  Defendant  Walter  representation  of  the  licensor  who 
purchased  a  play  from  plaintiff,  was  not  the  author  or  owner,  does 
rewrote  it ,  and  thereafter  the  play  not  state  a  defense  in  tlio  absence 
was  produced  successfully.  It  was  of  allegations  showing  that  the  de- 
held  that  plaintiff  could  not  have  fendant  rescinded  the  contract 
the  sale  set  aside  because  of  fraud,  and  offered  such  restoration  as 
where  he  retained   the   beuetits  would  place  the  licensor  in  the 


92  THE    LAW   OF  MOTION   PICTURES 

Section   32. — On  the   question  whether  a  contract  to 
write  will  be  specifically  enforced. 
Equity  will  not  compel  an  author  to  specifically  perform 
a  contract  providing  for  the  writing  of  a  book  or  play.^^ 

Section  33. — On  the  question  whether  the  licensor  may 
maintain  an  action  against  third  parties. 
We  have  already  discussed  the  right  of  a  producer 
possessing  a  sole  and  exclusive  license  to  enjoin  his  licensor 
as  well  as  all  other  persons  claiming  through  such  licensor 
from  violating  his  license.^-  It  has  also  been  held  that 
the  licensor,  although  he  has  for  a  period  granted  away 
his  rights,  may  maintain  actions  against  third  parties  for 
any  infringement  of  his  work,  as  such  an  infringement 
affects  his  remainder  interest  in  his  property.''^ 

Section  34. — On  the  question  whether  courts  grant  in- 
junctions pendente  lite  more  readily  in  actions  of 
this  nature. 

In  conclusion,  attention  may  be  called  to  the  fact  that 

position  in  which  he  stood  before  "  Fleroii  v.  Lackaye  (1891),  14 

the  granting  of  the  license.    If  he  N.  Y.  Supp.  292.    The  owner  of  a 

elects  to  disaffirm,  he  must  return  dramatization    who    licenses    a 

the  benefits  received.  third    party    to    produce    such 

A    counterclaim    for    royalties  dramatization   may   in   his   own 

already  paid,  is  demurrable  when  name  maintain  an  action  against 

it  does  not  allege  that  the  license  one  who  pirates  the  dramatiza- 

was  surrendered  and  the  benefits  tion.    "An  injury  to  it  (the  play) 

received  by  the  licensee  restored  reaches    his    proprietary     right, 

to  plaintiff.  notwithstanding    tiie    temporary 

*^  W I litwood  y.  Hardman  (Eng.)  license  given"  to  a  third  party 

(1891),  2  Ch.  416.  "to  perform  the  play  for  a  limited 

*'See  Section  18.  period." 


INJUNCTIONS    PENDENTE    LITE  93 

injunctions  pendente  lite  are  granted  more  readily  in 
actions  brought  by  or  against  authors  or  persons  claiming 
through  such  authors  on  account  of  breaches  of  contracts 
with  respect  to  tlieir  literary  products  than  in  oth^r 
actions,  because  the  delay  involved  in  waiting  for  a  final 
decree  will  frequently  amount  to  a  denial  of  justice.'^ 

"  Chappell  V.  Fields  (1914) ,  210  (1900) ,  30  Misc.  (N.  Y.)  651 ;  64 
Fed.  (C.  C.  A.)  864;  Comstock  v.  N.  Y.  Supp.  506,  where  it  was 
Lopokoiva  (1911),  190  Fed.  (C.  C.)  held  that  because  of  a  sharp  con- 
599;  Nixon  v.  Doran  (1909),  168  flict  of  facts  no  temporary  in- 
Fed.  (C.  C.)  575.  junction  would  be  granted. 

But    see:    Kerker    v,    Lederer 


CHAPTER  III 

THE  PRODUCER 

The  Actor 

Sec.  35.  In  general. 

36.  Injunction  for  breach  of  contract  where  services  are  special, 

unique  and  extraordinary. 

37.  Injunctions  pendente  lite. 

38.  Services  to  be  "satisfactory." 

39.  Length  of  engagement. 

40.  Two  weeks'  notice  and  other  customs. 

41.  Contracts  for  work  on  Sunday. 

42.  Services  "actually  performed." 

43.  Substantial  performance. 

44.  Anticipatory  breach. 

45.  Exposure  to  obscenity,  ridicule,  degradation,  etc. 

46.  Renewal  of  contract — modification. 

47.  How  many  causes  of  action  for  breach. 

48.  Actor's  remedy  for  breach. 

49.  Profits  as  a  basis  for  damages. 

50.  Producer's  offer  of  re-employment  after  breach. 

51.  Grounds  for  discharge. 

52.  Actor's  breach  of  the  contract — damages. 

53.  Changing  motion  picture. 

54.  Contracts  with  infants. 

55.  Inability  of  producer  where  studio  closed  by  the  authorities. 

56.  Questions  of  travel. 

57.  IJooking  agencies. 

58.  Workmen's  Compensation  Acts. 

59.  Carnishmcnt. 

60.  Serial  stories. 
94 


IN   GENERAL  95 

61.  Escrow  agents. 

62.  Where  joint  venture. 

63.  Royalties  in  addition  to  salary. 

64.  Law  governing  validity  of  contract. 

65.  Contract  labor  and  exclusion  laws. 

66.  Performance  in  unlicensed  theatre. 

67.  Contracts  for  transportation — damages. 

68.  Power  of  company's  officer  to  contract — agency. 

69.  Costumes. 

70.  I'^nticement  of  actor. 

71.  Libel  of  actor. 

Section  35. — In  general. 

We  have  seen  that  the  application  of  old  legal  principles 
to  the  evanescent  forces  of  a  new  industry  is  not  always 
easy  of  accomplishment. 

Thus  far  we  have  viewed  this  shifting  adjustment  from 
the  standpoint  of  the  outsider — from  him  who  occasionally 
rubs  shoulders  with  those  in  the  business. 

We  shall  now  discuss  the  outcome  of  the  relationships 
of  the  various  parties  directly  connected  with  the  moti(jn 
picture — the  film  producer,  the  actor,  the  scenario  "v\Titer, 
the  director  and  so  on. 

Section  36. — Injunction  for  breach  of  contract  where 
services  are  special,  unique  and  extraordinary. 

When  an  actor  of  special  ability  breaches  his  contract 
with  the  motion  picture  producer,  it  becomes  very  im- 
portant to  know  how  the  producer  may  seek  redress,  and 
avoid  the  irreparable  damages  that  would  follow  such  a 
breach  of  the  contract. 

The  rule  is  that  where  the  services  of  the  actor  are 
special,  unique  and  extraordinary  and  the  damage  to  the 


96 


THE    LAW   OF   MOTION   PICTURES 


producer  would  be  irreparable,  the  latter  may  restrain 
him  from  appearing  elsewhere,  provided  his  contract  con- 
tains a  negative  covenant  not  to  appear  elsewhere.^ 

While  this  is  in  effect  tantamount  to  decreeing  specific 
performance  of  a  contract  for  personal  services,  equity 
makes  the  exception  to  the  general  rule  where  the  serv- 
ices of  the  artist  are  of  such  an  unusual  nature. 

A  contract  for  the  exclusive  services  of  an  actor  or 
dramatist  is  vaHd  and  not  in  restraint  of  trade. ^ 


^Lumley  v.  Wagner  (Eng.), 
(1852),  1  DeG.  M.  &  G.  604; 
Lawrence  v.  Dixe\j  (1907),  119 
A.  D.  (N.  Y.)  295;  104  N.  Y. 
Supp.  516;  Standard  Fashion  Co. 
V.  Siegel-Cooper  Co.  (1898),  157 
N.  Y.  60;  51  N.  E.  408;  Phila. 
Ball  Club  V.  Lajoie  (1902),  202 
Pa.  St.  210;  51  Atl.  973;  Grimston 
V.  Cunningham  (Eng.)  (1894), 
1  Q.  B.  D.  125;  Comstock  v. 
Lopokowa  (1911),  190  Fed.  (C.  C.) 
599. 

McCaull  V.  Braham  (1883),  16 
Fed.  (C.  C.)  37.  This  case  con- 
tains a  summary  of  the  English 
and  early  American  decisions 
respecting  the  issuance  of  in- 
junctions in  actions  of  this  charac- 
ter. 

Daly  V.  Smith  (1874),  49  How. 
Pr.  (N.  Y.)  150.  This  is  a  leading 
case  in  this  country  on  tlie  right 
to  injunction  in  the  case  of  unique 
and  extraordinary  services. 


2  Morris  v.  Colman  (Eng.) 
(1812),  18  Ves.  437;  Tivoli,  Man- 
chester V.  Colley  (Eng.)  (1904),  20 
T.  L.  R,  437;  Mapleson  v.  Ben- 
tham  (Eng.)  (1871),  20  W.  R.  176; 
London  Music  Hall  v.  Austin 
(Eng.)  (1908),  Times,  Dec.  16; 
Clark  Paper  &  Mfg.  Co.  v.  Sten- 
acker  (1917),  100  Misc.  (N.  Y.) 
173. 

See  in  this  connection:  Ameri- 
can League  v.  Chase  (1914),  86 
Misc.  (N.  Y.)  441;  149  N.  Y. 
Supp.  6.  Bissell,  J.  "A  court  of 
equity  insisting  that  'he  who  comes 
into  equity  must  come  with  clean 
hands,'  will  not  lend  its  aid  to 
promote  an  unconscionable  trans- 
action of  the  character  which 
the  plaintiff  is  endeavoring  to 
maintain,  and  strengthen  by  its 
application  for  this  injunction. 
The  court  will  not  assist  in  en- 
forcing an  agreement  which  is  a 
I)art  of  a  "general  plan  having  for 


INJUNCTION    FOR   BREACH   OF   CONTRACT 


97 


In  determining  whether  the  services  are  special,  unique 
and  extraordinary  the  court  will  take  into  consideration 
the  salary  stipulated  under  the  contract,  the  production, 
the  probability  of  damage,  and  the  indispensaljility  of  the 
actor.    Indeed  tliis  last  named  (juahty  is  the  acid  test.' 


its  ol)ject  the  maintenance  of  a 
monopoly,  interference  with  the 
personal  liberty  of  a  citizen,  and 
the  control  of  his  full  right  to 
lal)or  wherever  and  for  whom  he 
pleases;  and  will  not  extend  its 
aid  to  further  the  purposes-  and 
practices  of  an  unla^^'ful  combi- 
nation, by  restraining  the  de- 
fendant from  working  for  any- 
one but  the  plaintiff." 

'  Edwards  v.  Cissy  Fitzgerald 
(1895),  N.  Y.  Law  Journal, 
January  16.  Pa.ssing  on  the  ques- 
tion of  replacement,  the  court 
said:  "She  has  a  charm  peculiar 
to  herself.  By  her  grace,  beauty, 
and  artistic  methods  she  has  be- 
come a  special  attraction.  The 
plaintiff  would  undoubtedly  find 
it  diflicult  to  procure  a  sul)stitutc 
who  would  be  likely  to  produce  a 
similar  impres-siou  ui)on  the  pui>- 
lic." 

Zicgfeld  v.  Norworth  (1909),  134 
A.  D.  (X.  Y.)  951;  118  N.  Y. 
Supp.  1151.  On  a  question 
of  injunction  it  was  sliown  that 
the  defendant  wa^^  the  real  star 
around  whom  the  whole  produc- 


tion of  plaintiff's  play  centred, 
and  that  she  had  been  heavily 
featured  in  announcements  and 
advertisements  so  as  to  give  her 
real  prominence. 

Universal  Talking  Machine  v. 
English  (1901),  34  Misc.  (N.  Y.) 
342;  G9  X.  Y.  Supp.  813.  "The 
important  fact  is  that  notwith- 
standing defendant's  defection, 
plaintiff  is  still  able  to  produce 
master  records,  which  defendant 
swears  and  plaintiff  does  not 
deny  are  quite  as  good,  if  not  a 
Httle  better  than  those  which 
defendant  made.  It  does  not 
appear,  therefore,  that  the  same 
services  that  defendant  agreed  to 
render  cannot  readily  be  ob- 
tained from  another,  and  the 
application  for  an  injunction 
upon  this  ground  cannot  prevail." 

See  also:  John~'<on  Co.  v.  Ifiiut 
(1892),  66  Hun,  .504;  affd  142 
N.  Y.  621;  37  N.  E.  564  (manager 
and  advertising  solicitor);  .S/ro- 
hridge  Litho.  Co.  v.  Crane  (1890), 
.58  Hun,  Oil;  12  X.  Y.  Supp.  898 
(lithographer  and  designer) ;  AV.s-.s-- 
Icr  v.  Chappellc  (1902),  73  A.  D. 


98  THE    LAW    OF   MOTION    PICTURES 

If  the  actor  may  be  substantially  replaced  the  courts  will 
not  interfere  by  injunction;  but  if  such  is  not  the  case, 
and  the  manager  or  producer  is  threatened  with  irrepar- 
able loss,  equity  will  step  in  to  give  relief  by  injunction. 

The  fact  that  an  actor  is  special,  unique  and  extraordi- 
nary on  the  stage  would  seem  to  indicate  necessarily  that 
he  is  so  for  motion  pictures.  But  the  courts  will  not  al- 
ways enjoin  in  the  case  of  motion  pictures,  unless  there  is 
some  definite  proof  of  damage.  If  an  actor  threatens 
to  leave  after  the  opening  of  the  play  the  profits  derived 
prior  to  its  closing  down  may  furnish  some  basis  for 
measuring  damages.  On  the  other  hand,  a  motion  pic- 
ture producer  may  have  a  great  actor  under  contract  to 
produce  a  single  picture,  and  upon  his  failure  to  appear 
at  the  studio,  the  damage  will  run  into  future  profits, 
with  no  basis  upon  which  they  may  be  computed.^ 

Of  cpurse,  injunction  will  not  be  granted  unless  there 

(X.  Y.)  447;  77  N.  Y.  Supp.  285  that  of  a  theatrical  manager  who 

(wine  agent);  W.  R.  Mfg.  Co.  v.  finds  a  prominent  artist  deserting 

Rogers  (1890);  58  Conn.  356;  20  him  and  thereby  preventing  the 

Atl.  467  (general  manager) ;  Stern-  daily  or  nightly  performance  of 

berg  v.  O'Brien  (1891),  48  N.  J.  a  going   play.     The   loss   which 

Eq.  370;  22  Atl.  348  (installment  this  plaintiff  will  sustain  is  failure 

c()llector);DePoZv.  <So/(/A;e  (1867),  to    get    a    photoplay  with    Lew 

7    Robt.    (N.    Y.)    280    (actor);  Fields  in  it,  and  consequent  in- 

S.  F.  Co.  V.  Sicgel-Cooper  (1898),  ability   to   sell   or   hire   out   the 

157  ^[.  Y.  60;  51  N.  E.  408  (sale  films.    It  seems  to  me  that  such 

of  patterns);  Carter  v.  Ferguson  damages  are  altogether  specula- 

(1890),  58  Hun,  569;  12  N.  Y.  tive  and  do  not  warrant  the  issue 

Supp.  580  (actor).  of    a    preliminary    injunction    if 

*  Peerless     Feature     v.     Fields  there   be   any   means   by   which 

(1915),    N.     Y.     Law    Journal,  plaintiff's    actual    and    provable 

Sept.  28.     "The  case  is  not  like  loss  can  be  secured  to  it." 


INJUNCTION    FOR   BREACH    OF   CONTRACT 


99 


is  a  nogativ^e  covenant  in  the  contract  by  whicli  the 
actor  binds  himself  not  to  take  other  employment  during 
the  term  of  the  contract;  ^  or  in  the  absence  of  such  nega- 
tive covenant  there  jjiay  be  an  affirmative  covenant  to 
render  '^exclusiv^e"  services,  or  facts  showing  that  it  was 
thcjntention  of  the  parties  that  the  actor  perform  at  ncj 
othrr_pla^ejiunng^_the^  liLyi^^^'^  ^'^^^~ 

tract  is  so  worded  that  it  would  be  a  physical  iinjDossibility 
for  the  actor  to  perform  elsewhere 7  Under  these  circum- 
stances the  negative  covenant  would  be  implied. 

The  courts  do  not  favor  the  granting  of  injunctions  in 
cases  of  this  kind  unless  from  the  proof  the  right  thereto 
appears  to  be  reasonably  free  from  doubt. "^ 

First  and  foremost  it  must  appear  that  the  services  of 


''Lacy  V.  Ilouck  (1899),  9  Ohio 
Dec.  (Repr.)  347;  Caldwell  v. 
dim  (1830),  8  xMart.  (N.  S.)  684 
(La.);  Lumlcy  v.  Wagner  (Eng.) 
(1852),lDeG.  M.  &G.  604. 

« Iloyt  V.  Fuller  (1892),  19  X.  Y. 
Siipp.  962.  No  negative  cove- 
nant, yet  injunction  \va.s  Issued  as 
defendant's  services  were  unicjuc 
and  extraordinary  and  she  \va^ 
engaged  during  tlie  "run"  of 
l)laintitT's  play.  See  also:  Cort  v. 
La.'isard  (1889),  18  Ore.  221;  22 
Pac.  1054;  Kurlan  v.  Guiman 
(191')),  90  Misc.  (X.  Y.)  14;  152 
N.  Y.  Supp.  S97;  Palace  Theatre 
V.  Clency  (Kng.)  (1909),  26 
T.  L.  R.  28;  Whitwood  v.  Ilard- 
vian  (Eng.)  (1891),  2  Ch.  416. 


'Duff  V.  Riissell  (1891),  14 
N.  Y.  Supp.  134;  aff'd  on  opinion 
of  court  below  in  133  X'.  Y.  678; 
31  N.  E.  622.  Although  the  con- 
tract contains  no  negative  cove- 
nant, an  injunction  will  he  granted 
where  the  intention  of  the  partie-s 
can  clearly  he  inferred  from  the 
contract  to  have  heen  that  the 
defendant  was  to  render  services 
e.\clusively  for  the  plaintifT.  The 
defendant  agreed  to  give  seven 
performances  each  week  exclusive 
of  Sunday. 

H'anary  v.  Russell  (1894),  9 
Misc.  (X.  Y.)  558;  30  X.  Y. 
Supp.  122;  Gurdon  v.  liarr  (1917), 
X.  Y.  Law  Journal,  Jan.  20th, 
Hendrick,  J. 


100  THE   LAW   OF  MOTION   PICTURES 

the  actor  sought  to  be  enjoined  are  special,  unique  and 
extraordinary.  This  does  not  mean  that  the  parties 
themselves  may  stipulate  that  the  services  are  such,  but 
the  ser\'ices  must  appear  to  be  special,  unique  and  ex- 
traordinary from  the  facts.^  Just  what  would  bring  an 
actor's  services  under  these  classifications  cannot  be 
stated  with  any  degree  of  definitiveness.  The  salary 
paid  him  is  one  method  of  judging.  Yet  here  again  the 
decisions  do  not  harmonize;  for  in  one  case  an  acrobat 
who  received  sixty  dollars  per  week  was  enjoined, ^°  while 
in  another  case  an  opera  singer  earning  two  hundred  and 
fifty  dollars  per  week  was  held  not  to  come  within  the  rule.^^ 

The  better  rule  would  be  to  say  that  the  salary  paid, 
in  conjunction  with  the  other  circumstances  of  the  case, 
is  a  fair  guide  to  the  nature  of  the  services,  and  is  some 
index  to  the  relative  degree  of  importance  of  the  actor. 

Injunction  will  be  granted  only  for  the  term  of  the 
contract — that  is  to  say,  the  actor  will  be  enjoined  from 
appearing  elsewhere  for  as  long  a  time  as  his  contract 
with  the  plaintiff  has  to  run.^-    And  an  actress  will  not 

^Carter  v.  Ferguson  (1890),  58  Gruhan  (Eng.)  (1909),  1  Ch.  413; 

Hun  (N.  Y.),  569;  12  N.  Y.  Supp.  Doherty  v.  Allman  (Eng.)  (1878), 

580;  Hnmmersleinv.  Mann  (1910),  3  App.  Cas.  709;  Gaidij  Theatre  v. 

137  A.  D.  (N.  Y.)  580;  122  N.  Y.  Cisay      Loflm      (Eng.)      (1893), 

Supp.  276.           ,  Times,  Aug.  11th;  Davis  v.  Fore- 

'^Corl   V.   Lazzard    (1889),    18  moM  (Eng.)  (1894),  3  Ch.  654. 

Ore.  221;  22  Pac.  1054.  '^  Shuberl  v.  Ange'ci^  (1903),  80 

'I  Hammerslcin  v.  Mann  (1910),  A.  D.  (N.  Y.)  025;  SO  N.  Y.  Supp. 

137  A.  D.  (N.  Y.)  580;  122  N.  Y.  146.    Modifying  decision  of  lower 

Supp.  276.  court  by  limiting  injunction  to 

When  services  were  held  not  to  date  when  contract  of  employ- 
fee  exclusive.    Sec  also:  Kirchner  v.  ment  would  expire. 


INJUNCTION    FOR  BREACH   OF   CONTRACT 


101 


be  enjoined  from  performing  at  another  theatre  during 
the  sunnner  months,  where  the  employment  contem- 
plated under  the  original  contract  was  only  for  a  number 
of  "seasons."  '^  And  where  an  actress  enters  into  two 
contracts  with  the  same  management,  one  for  winter 
performances  and  the  other  for  summer  performances,  one 
contract  may  be  enforced  by  injunction,  and  the  other 
may  not.^' 

In  order  to  entitle  him  to  injunction  the  damage  to  the 
plaintiff  must  be  irreparable.^^  It  has  been  held  that 
where  the  parties  have  agreed  in  the  contract  that  in 
the  event  of  a  breach  the  actress  would  become  hable  to 
a  fixed  penalty  by  way  of  liquidated  damages,  injunction 
would  not  lie,  as  the  damages  had  been  determined  and 
agreed  upon  in  advance.'^ 


^^  Canary  v.  Rxissell  (1894),  9 
Misc.  (N.  Y.)  558;  30  N.  Y. 
Supp.  122;  Lawrence  v.  Dixey 
(1907) ,  1 19  A.  D.  (N.  Y.)  296;  104 
N.  Y.  Supp.  516. 

^*  Keith  V.  Kellerman  (1909), 
169  Fed.  (C.  C.)  196. 

•*  Maplcison  v.  La  Blache,  Su- 
perior Court,  Spec.  Term,  Oct., 
188:i  (N.  Y.).  It  was  held  that 
an  injunction  pendente  lite  to  pre- 
vent defendant  from  si^nins  would 
not  be  granted  where  the  com- 
plaint did  not  aver  that  plaintiff 
would  suffer  irreparable  injury 
or  that  a  competent  substitute 
could  not  l)e  secured. 

'6 II aim  V.   The  Concordia  So- 


ciety (1875),  42  Md.  460.  The 
actor  contracted  to  give  per- 
formances and  agreed  that  for 
his  breach  he  would  be  liable  in 
the  sum  of  S200.  After  he  broke 
the  contract,  plaintiff  attempted 
to  enjoin  him  from  appearing 
elsewhere.  Held  that  since  the 
parties  had  already  contracted 
for  a  specified  sura  as  liquidated 
damages  for  any  violation  of  the 
contract,  they  had  themselves 
settled  the  question  and  amount 
of  damages  resulting: 

"Having  tlius  l)y  their  own 
contract,  made  presumably  with 
full  knowledge  of  the  means  and 
ability    of    the    defendant,    and 


102 


THE   LAW  OF  MOTION   PICTURES 


But  this  is  not  the  true  rule.  The  intent  must  clearly 
appear  to  substitute  the  hqaidated  damages  for  per- 
formance. Unless  that  intent  is  clearly  expressed  the 
employer  will  be  entitled  to  an  injunction  nevertheless.^' 

The  element  of  mutuality  in  the  contract  is  indis- 
pensable to  its  enforcement  by  injunction.  There  must 
be  reciprocal  rights  and  obligations,  otherwise  a  court  of 
equity  will  not  enforce  the  contract. 

It  frequently  happens  that  while  the  contract  purports 
to  bind  the  actor  to  appear  for  a  definite  period,  it  fails 
to  obligate  the  manager  to  furnish  the  actor  with  employ- 


having  fixed  by  their  own  esti- 
mate the  extent  of  injury  they 
would  suffer  from  a  nonobserv- 
ance  of  this  condition,  and  having 
indicated  as  clearly  as  if  so  stated 
in  terms,  that  the  only  form  in 
which  they  could  seek  redress 
and  recover  the  stipulated  pen- 
alty or  forfeiture,  was  a  court  of 
law,  the  complainants  are  pre- 
cluded from  now  resorting  to  a 
Court  of  Equity  for  relief  by 
way  of  injunction,  on  the  ground 
that  a  violation  of  this  part  of 
the  contract  would  result  in 
irreparable  damage  and  injury 
to  them." 

To  the  same  effect:  Mapleson  v. 
Del  Puenle  (1883),  13  Abb.  N.  C. 
(N.  Y.)  144. 

"  Diamond  Match  do.  v.  Roeber 
(1887),  100  N.  Y.  473;  13  N.  E. 
419;  Feinstein  v.  Jacobson  (1914), 


161  A.  D.  (N.  Y.)  121;  146  N.  Y. 
Supp.  525;  Phcenix  Ins.  Co.  v. 
Continental  Ins.  Co.  (1882),  87 
N.  Y.  400;  Hoicard  v.  Woodward 
(Eng.)  (1864),  10  Jur.  N.  S.  1123; 
Coles  V.  Sims  (Eng.)  (1853),  5 
DeG.  McN.  &  G.  1;  Avery  v. 
Langford  (Eng.)  (1854),  Kay's 
Ch.  663;  Whittaker  v.  Howe  (Eng.) 
(1841),  3  Beav.  383;  Hubbard  v. 
Miller  {IS7S),  27  Mich.  15. 

Long  V.  Bowring  (Eng.)  (1864), 
33  Beav.  585.  It  was  said  in  this 
case  which  was  an  action  in  equity 
for  the  specific  performance  of. a 
covenant,  there  being  also  a 
clause  for  liquidated  damages, 
"all  that  is  settled  by  this  clause 
is  that  if  they  bring  an  action  for 
damages  the  amount  to  be  re- 
covered is  £1,000,  neither  more 
nor  less." 


INJUNCTION    FOR   BREACH    OF   CONTRACT 


103 


mont  during  tiiat  period,     lliis  is  a  defect  fatal  to  the 
contract.^*    So  that  a  contract  made  for  the  services  of  a 


»«  WUmark  v.  Peters  (1914),  1&4 
A.  D.  (N.  Y.)  366;  149  N.  Y. 
Supp.  642.  In  this  case  defend- 
nnt  Peters,  a  coinix)scr,  had  con- 
tracted with  phiintifT  to  write 
music  exclusivoly  for  it  and  for 
no  other  pubhshing  liouse  for  a 
term  of  five  years.  While  injunc- 
tion wa.s  sought  on  tlie  ground, 
strictly  speaking,  of  the  viohition 
of  a  property  right  rather  than  a 
personal  covenant,  the  question 
decided  appHed  witli  equal  force 
to  both.  The  Appellate  Division 
reversing  a  judgment  in  favor  of 
the  plaintitT,  held  tliat  since  the 
plaintiff  had  not  bound  itself  to 
publish  the  defendant  Peters' 
music  within  the  contract  period, 
the  granting  of  an  injunction 
would  place  that  defendant  at 
the  mercy  of  the  plaintiff,  and 
would,  in  effect,  prevent  him 
from  earning  a  livelihood. 

Salman  v.  Arcaro  (1911),  144 
A.  D.  (X.  Y.)  590;  129  N.  Y. 
Supp.  689.  A  negative  covenant 
in  a  musician's  contract  will  not 
be  enforced  where  the  plaintiffs 
do  not  obligate  themselves  to 
furnish  employment  for  any  siMjci- 
fied  period. 

Slntbert  v.  Coyne  (1908),  115 
N.  Y.  Supp.  968.    Plaintiff  sought 


a  temporary  injunction  to  re- 
strain an  actor  from  appearing 
elsewhere,  under  a  negative  cov- 
enant. In  the  contract  plaintiff 
had  agreed  to  pay  defendant  .S3U0 
a  week  for  "each  and  every  week 
that  he  .shall  actually  .  .  .  per- 
form." Held,  that  such  a  con- 
tract was  of  no  value  to  de- 
fendant and  lacked  mutuality. 
Motion  was  denied. 

Arena  A.  C.  v.  McPartlaml 
(1899),  41  A.  D.  (X.  Y.)  352;  58 
N.  Y.  Supp.  477.  AVhere  a  club 
contracted  with  two  boxers  for 
an  exhibition  on  March  29,  1897, 
"or  upon  such  daj'  or  days  and 
hour  to  which  such  exhibition, 
for  anj'  cause,  may  be  mutually 
postponed"  and  they  failed  to 
appear,  the  court  refused  in- 
junctif)n,  since  under  the  contract 
plaintiff,  by  failing  to  agree  mu- 
tually with  defendants,  might  in- 
definitely deprive  them  of  an 
opportunity  to  make  a  living. 

See  also:  Star  Co.  v.  Press  Pub. 
Co.  (1914),  162  A.  D.  (X.  Y.)  4S6; 
147  X.  Y.  Supp.  579;  Lerner  v. 
Tetrazzini  (1911), 71  Misc.  (X.  Y.) 
182;  129  X.  Y.  Supp.  889;  aff'd 
144  A.  D.  (X.  Y.)  928;  129  X.  Y. 
Supp.  1132;  Laurence  v.  Dixey 
(1907),  119  A.  D.  (X.  Y.)  295; 


104  THE    LAW   OF   MOTION   PICTIJRES 

motion  picture  ''star"  should  always  contain  a  provision 
for  a  guarantee  of  a  certain  number  of  pictures  to  be 
posed  in  or  of  a  fixed  minimum  compensation  to  be  paid 
to  the  actor  within  the  contract  period. 

It  is  easy  to  see  why  this  is  necessary.  Where  an  in- 
junction is  granted  restraining  the  actor  from  appearing 
elsewhere  and  the  plaintiff,  under  his  contract,  is  under 
no  obligation  to  furnish  the  actor  with  employment  or 
to  pay  him  a  minimum  wage,  the  actor  is  unable  to  earn 
his  living. 

Where,  therefore,  the  injunction  is  granted,  the  em- 
ployer must  be  under  a  duty  to  employ  and  pay  the  actor.  ^^ 
While  equity  will  go  far  to  enforce  a  personal  covenant 
of  an  actor,  it  will  not,  in  order  to  do  so,  condemn  him 
to  starvation. 

It  is  essential,  to  the  granting  of  the  injunction,  that 
the  plaintiff  shall  have  fully  performed  his  part  of  the 
contract.  So  that  where  a  grand-opera  tenor  was  to 
receive  a  certain  amount  of  publicity,  and  the  manager 
failed  to  live  up  to  that  covenant,  it  was  held  that  this 
was  such  a  breach  of  the  contract  as  justified  the  singer 

104    N.    Y.    Supp.    516;    Ide   v.  appearing  at  a  rival  music  hall, 

Brown  (1904),  178  N.  Y.  26;  70  the   court   announced    that    this 

N.  E.  101;  Crawford  v.  Mail  and  was  done  for  the  reason  tliat  it 

Express    Pub.    Co.    (1900),    163  was  possible  to  obtain  an  early 

N.  Y.  404;  57  N.  E.  616;  Frazee  V.  trial,  and   that  courts   were  re- 

Edeson,  Lehman,  J.,  N.  Y.  Law  luctant   in   such    cases    to   grant 

Journal,  April  29,  1915.  restraining  orders  whore  tlie  prae- 

"  Palace  Tlieatre,  Ltd.,  v.  Clensij  tical  result  might  mean   the  in- 

(Eng.)    (1909),  26  T.  L.  R.  28.  al)ility  of  the  defendant  to  earn 

While    injunction    was    grantccl  his    livelihood.      8ee    also    cases 

restraining    the    defendant    from  cited  under  footnote  18. 


INJUNCTION   FOR   BREACH   OF   CONTRACT  105 

in  not  performing,  and  the  manager  was  not  entitled  to 
injunctive  relief. '"  And  in  another  case  the  manager  was 
refused  injunction  because  he  failed  to  show  performance 
of  a  contract  under  which  he  was  to  give  the  defendant 
employment  during  the  "acting  weeks"  of  a  term  of 
years.-' 

A  most  unusual  and  interesting  case  in  this  connection 
is  Fechtcr  v.  Montgomery.--  There  an  actor  was  engaged 
for  a  stated  term  to  commence  some  weeks  ahead.  In 
the  meantime  the  manager  had  on  the  boards  a  play 
which  was  proving  verj'  profitable,  and  he  was  loath  to 
discontinue  it.  WTien  the  time  for  performance  of  the 
contract  arrived,  he  continued  his  old  play,  refused  to 
give  the  defendant  a  part  in  any  play,  but  paid  him  the 
salary  stipulated  in  the  contract.  The  defendant  be- 
coming tired  of  this  inactivity,  sought  and  obtained  em- 
ployment at  a  rival  theatre.  In  an  action  to  restrain  him, 
plaintiff  was  defeated,  the  court  holding  that  by  failing 
to  allow  the  actor  to  appear  in  a  play  as  contemplated  by 

-"  Pratt  V.   Montcgriffo   (1890) ,  p:iy   defendant   a   percentage   of 

10  N.  Y.  Supp.  903.  the  profits.     Held  that  plaintiff 

-'//(■//  V.  Iluberkorn   (1880),  3  was     bound     to     produce     plays 

Silv.  Sup.   (X.  Y.)  87;  6  N.  Y.  enough-  to   give   defendant    em- 

Supp.    474.      Where    defendant  ployment  in  "the  acting  weeks" 

agreed    to    perform    for   plaintiff  of  every  year, 

at    such    times    and    places    as  "  Fechter  v.  Montgomery  (Eng.) 

plaintiff   might   direct   "to   com-  (1863),  33   Beav.   22.     See  also: 

mence  on  or  about  .Ian.  4,  1881,  Newman  v.  Gatti   (Eng.)    (1907), 

and   continue   during   tlie   acting  24  T.  L.  R.  IS;  Grimston  v.  Cun- 

wceks  of  six  years,"  phiintitT  ac-  itigham   (Eng.)   (1894),  Q.   B.  D. 

cepted    "the   above   contract   on  12.");    Grant    v.    Maddux    (Eng.) 

tlie  terms  and  conditions  therein  (1846),  15  M.  &  VV.  737. 
stipulated"  and  bound  him.self  to 


106  THE    LAW   OF   MOTION   PICTURES 

the  contract,  plaintiff  had  breached  the  contract — that 
one  of  the  objects  of  the  contract  was  to  enable  the  de- 
fendant to  appear  before  a  London  audience  and  to  dis- 
play his  talents  and  abilities. 

This  case  is  of  prime  importance,  because  it  upholds 
the  doctrine  that  the  actor  is  not  paid  in  terms  of  money 
alone,  but  that  he  is  paid  as  well  in  opportunity  to  appear 
before  the  public,  in  pubhcity  and  in  the  fame  and  reputa- 
tion that  are  concomitant  with  such  opportunity — that  a 
contract  of  employment  with  an  actor  is  sui  generis.-^ 

It  would  seem  to  follow  from  the  foregoing,  that  if  a 
motion  picture  producer  were  to  engage  a  prominent 
actor  for  a  fixed  term,  pay  him  his  salary,  but  make  no 
picture,  that  would  be  a  breach  of  the  contract  suffi- 
cient to  justify  a  rescission  by  the  actor. 

Nor  will  an  injunction  be  granted  to  the  second  man- 
ager with  whom  an  actress  contracted  where  to  do  so 
would  subject  her  to  a  suit  by  the  first  manager.-^ 

The  courts  will  not,  however,  enjoin  an  infant  where 
the  services  are  unique  and  extraordinary.-'^  .Ajid  in  a 
case  where  the  plaintiff,  a  teacher  of  stage  dancing,  con- 

■^^  Pratt  V.  Montegriffo  (1890),  at  the  Tivoli.     The  Tivoli  was 

10  N.  Y,  Supp.  903.  refused    an    injunction    on    the 

2<  New  Tivoli  v.  Ilapprj  Fanny  ground   that   to  grant  it  would 

Fields  (Eng.)   (1906),  Strong  on  expose   defendant   to   an   action 

"Dramatic   and   Musical   Law,"  by  the  Robert  Arthur  Co.  who 

3d  Ed.,  p.  40.     Defendant  con-  had  contracted  first  witli  her,  and 

tracted   in   January,    1906,  with  who  had   a   prior   claim   on  her 

the  Robert  Arthur  Company  to  services. 

appear  at  the  Adelphi.     In  July,  ^^  Aborn   v.   Janis    (1907),   62 

lOOfi,  she  contracted  with  plain-  Misc.    (N.    Y.)    95;    113    N.    Y. 

tiff  to  appear  for  three  seasons  Supp.  309. 


IXJrNrTION    FOR    RREAC'H    OF    CONTRACT 


107 


tractcd,  not  only  with  the  infant,  hut  with  her  mother 
as  well,  that  during  the  apprenticeshii)  the  infant  was 
not  to  perform  at  any  place  without  his  consent,  injunc- 
tion was  denied.-'' 

Managers  frecjuently  insert  a  ''barring  clause"  in  their 
contracts  which  provides  that  the  actor  is  not  to  appear 
wdthin  a  certain  radius  for  a  specified  time  before  the 
commencement  or  after  the  termination  of  the  contract. 
Such  contracts  are  upheld,  pro\'iding  the  restrictive  cove- 
nants are  not  too  broad.-"  But  where  the  clause  is  un- 
reasonably wide,-^  or  no  clear  breach  by  the  defendant 
is  made  out  -^  or  no  likelihood  of  irreparable  damage  is 
shown,^°  the  remedy  will  be  denied.     It  is  interesting  to 


2*  Dc  Francesco  v.  Barman 
(Ens.)  (1SS9),60  L.  J.  Ch.  63. 

2'  Wilkop  &  Holmes  Co.  v. 
Boijce  (1908),  61  Misc.  (N.  Y.) 
126;  112  N.  Y.  Supp.  874;  aff'd 
131  A.  D.  (X.  Y.)  922;  115  X.  V. 
Supp.  1150;  London  Music  Hall 
V.  Poliu^ki  (Enp;.),  Strong  on 
"Dramatic  and  Musical  Law," 
3d  Ed.,  p.  42. 

''^Canterbury  ct  Paragon,  Ltd., 
V.  Lloyd  (Eng.)  (1898),  Strong  on 
"Dramatic  and  Musical  Law," 
3d  Ed.,  p.  42. 

=9  London  Theatre  of  Varieties, 
Ltd.,  V.  Evans  C.A.  (Eng.)  (1914), 
31  T.  L.  R.  75.  Defendant  agreed 
to  render  his  services  exclusively 
for  plaintitT  and  further  agreed 
not  to  permit  any  representation 
or  version  of  his  performance  to 


be  given  within  a  certain  radius. 
Phiintiff  contended  that  defend- 
ant liad  permitted  the  presenta- 
tion of  a  motion  picture  version 
of  one  of  his  sketclies  to  be  given 
within  the  prescribed  areas  and 
sought  to  restrain  him  from  per- 
mitting such  performances. 

Held  that  on  the  evidence  de- 
fendant had  not  taken  part  in  the 
alleged  reproduction,  hence  no 
injunction  would  lie. 

3'^  Mapleson  v.  Bentham  (luig.) 
(1871),  20  W.  R.  176.  Where  de- 
fendant, a  tenor,  had  contracted 
to  sing  for  jilaintilT  during  the 
season  commencing  1870,  anil 
agreed  that  after  the  expiration 
of  his  contract  he  would  not  sing 
within  20  miles  of  London  during 
the    year    1871.      Held    that    in- 


108 


THE    LAW   OF  MOTION   PICTURES 


note  that  in  measuring  the  distance  defined  in  the  '^  bar- 
ring clause"  the  courts  have  construed  the  same  to  be 
from  point  to  point. ^^ 


Section  37. — Injunctions  pendente  lite. 

The  parties  frequently  contract  that  in  the  event  of  a 
breach  by  the  actor,  an  injunction  may  issue  restraining 
him.  That  is  a  useless  provision,  and  will  be  disregarded 
by  a  court  of  equity. ^^     Parties  may  not  by  contract 


junction  to  restrain  his  singing 
at  Brighton  in  1S71,  would  not 
lie,  as  no  irreparable  injury  or 
damage  was  shown. 

31  London  Music  Hall  v.  Poluski 
(Eng.),  Strong  on  "Dramatic  and 
Musical  Law,"  3d  Ed.,  p.  42. 
Defendants  there  had  agreed  in 
a  "barring  clause"  not  to  per- 
form witliin  a  radius  of  a  mile 
and  a  half  of  plaintiff's  theatre. 
Thc}^  contended  that  by  "Phillip's 
Table  of  Distances,"  the  place 
of  performance  was  outside  of 
the  radius  limited. 

Held  that  the  proper  construc- 
tion was  between  point  and 
point  or  "as  the  crow  flies." 

^^Dockstader  v.  Rccd  (1907), 
121  A.  D.  (N.  Y.)  81G;  106  N.  Y. 
Supp.  795.  The  contract  pro- 
vided that  the  services  to  be  ren- 
dered by  defendant  were  "special, 
uniciue  and  oxtraordiiiary."  The 
defendant    agreed    that    in    the 


event  of  a  breach  by  him,  an 
injunction  might  be  issued  against 
him  restraining  him  from  render- 
ing services  for  any  other  person. 
Held  that  the  court  was  not 
bound  by  the  statement  of  de- 
fendant that  his  services  were 
unique  nor  that  it  should  issue 
an  injunction  in  case  the  defend- 
ant attempted  to  work  for  some 
person  other  than  plaintiff.  It  is 
for  the  court  to  say,  whether  in 
the  exercise  of  its  sound  discre- 
tion an  injunction  shall  issue. 

"Parties  to  an  agreement  can- 
not contract  that  courts  will  exer- 
cise their  functions  against  or  in 
favor  of  themselves.  Whether 
or  not  a  court  will  so  exercise  its 
powers  is  for  the  court  itself  to 
determine." 

Hammerslein  v.  Mann  (1910), 
137  A.  D.  (N.  Y.)  580;  122  N.  Y. 
Hupp.  276.  Held  that  a  clause  in 
the  contract  giving  the  plaintiff 


INJUNCTION   FOR   BREACH   OF   CONTRACT 


109 


between  themselves,  usurp  the  functions  of  a  court  of 
equity,  and  stipulate  that  the  court  may  or  may  not 
exercise  its  functions.  The  granting  of  a  temporary  in- 
junction is  always  a  matter  of  discretion  "  and  that  dis- 
cretionary power  may  be  exercised,  not  by  the  parties 
themselves,  but  by  the  court  alone.^* 


the  right  to  obtain  an  injunction 
was  not  binding  on  the  court, 
us  the  parties  could  not  by  pri- 
vate agreement  usurp  the  func- 
tions of  a  court  of  equity  which 
may  alone,  in  its  discretion, 
grant  or  refuse  injunctions. 

"  Willard  V.  Tayloe  (1869),  8 
Wall.  564.  "When  a  contract  is 
of  tiiis  character  it  is  the  usual 
practice  of  courts  of  equity  to 
enforce  its  specific  execution  upon 
the  application  of  the  party  who 
has  complied  with  its  stipulations 
on  his  part,  or  has  seasonably 
and  in  good  faith  offered,  and 
continues  ready  to  comply  with 
them.  But  it  is  not  the  invariable 
practice.  This  form  of  relief  is 
not  a  matter  of  absolute  right  to 
either  party ;  it  is  a  matter  resting 
in  the  discretion  of  the  court,  to 
be  exercised  upon  a  consideration 
of  all  the  circumstances  of  each 
particular  case.  Tiic  jurisdiction, 
said  Lord  Erskine,  'is  not  com- 
pulsory upon  the  court,  but  the 
subject  of  discretion.  The  ques- 
tion is  not  what  the  court  must 


do,  but  what  it  may  do  under  the 
circumstances,  either  exercising 
the  jurisdiction  by  granting  the 
specific  performance  or  abstain- 
ing from  it.'" 

Marconi  Wireless  v.  Simon 
(1915),  N.  Y.  Law  Journal, 
Nov.  22.  Judge  Hough  states: 
"An  injunction,  and  especially 
one  pendente  lite,  is  always  of 
grace  and  not  of  riglit." 

Maplcson  v.  Del  Puente  (1883), 
13  Abb.  X.  C.  (X.  Y.)  144.  "The 
granting  of  an  injunction  pen- 
dente lite  is  always  in  the  discre- 
tion of  the  court,  and  should  be 
ordered  with  caution  and  even 
with  some  reluctance,  and  only 
when  the  rights  of  the  plaintiff 
on  the  law  and  the  facts  are 
clear,  and  the  necessity  for  that 
form  of  equitable  relief  is  mani- 
fest in  order  to  prevent  a  failure 
of  justice."  See  also:  Metro- 
politan Ex.  Co.  V.  Ward  (1890), 
9  X.  Y.  Supp.  779;  Phila.  Ball 
Chtb  V.  Lajoie  (1902),  202  Pa.  St. 
210;  51  Atl.  973. 

'^Dockstader    v.    Reed    (1907), 


no 


THE    LAW   OF   MOTION   PICTURES 


All  disputed  and  doubtful  questions  of  fact  must  be 
resolved  in  favor  of  the  defendant  upon  a  hearing  for 
temporary  injunction.^-'  And  the  ex  parte  statements 
contained  in  the  letters  of  third  parties  whose  affidavits 
are  not  submitted  on  the  motion  are  not  competent  and 
cannot  be  considered. ^^ 

Where  the  granting  of  a  preliminary  injunction  might 
result  in  injury  equal  to  or  greater  than  its  denial,  the 
court,  as  a  rule,  will  not  enjoin. ^^  So,  too,  in  a  case  where 
the  equities  of  the  complainant's  bill  are  fully  and  specif- 
ically denied  by  defendant's  answer  under  oath,  for  in 


121  A.  D.  (N.  Y.)  846;  106  N.  Y. 
Supp.  795;  Hammer  stein  v.  Mann 
(1910),  137  A.  D.   (N.  Y.)  580; 

122  N.  Y.  Supp.  276. 

"  Photo  Drama  v.  Social  Uplift 
(1914),  213  Fed.  (D.  C.)  374; 
aff'd  220  Fed.  448;  Kerker  v. 
Lederer  (1900),  30  Misc.  (N.  Y.) 
651;64N.Y.  Supp.  506. 

World  Film  Corp'n  v.  Foy  and 
N.  Y.  Motion  Picture  Corp'n 
(1915),  N.  Y.  Law  Journal,  June 
30.  "  Plaintiff  concedes  that  there 
was  no  contract  in  writing.  There 
was  not  even  a  copy  of  a  proposed 
contract  to  tlie  provisions  of 
which  parties  might  be  held  by 
oral  agreement.  At  most  there 
was  a  draft  of  a  proposed  con- 
tract, which  from  its  very  terms 
was  tentative  and  necessarily 
open  to  review  and  discussion. 
In  any  view  there  is  nothing  to 


show  that  by  oral  or  written 
agreement  plaintiff  assumed  any 
obligation  or  responsibility,  and 
there  being  an  absolute  lack  of 
mutuality,  it  cannot  obtain  pro- 
visional remedy  by  injunction. 
In  addition  there  is  a  clear-cut 
question  of  fact  involved,  and  the 
court  at  Special  Term,  will  not 
determine  that  question  on  affi- 
davits in  advance  of  the  trial. 
Application  for  injunction  denied, 
with  costs." 

'Ulaskell  v.  Oshorn  (1898),  33 
A.  D.  (N.  Y.)  128;  53  N.  Y.  Supp. 
361. 

'^  Peerless  Feature  v.  Fields 
(1915),  N.  Y.  Law  Journal, 
Sept.  2>>;Rudge-]Vhitivorth,  Ltd.,  v. 
Ilouck  Mfij.  Co.  (1914),  221  Fed. 
(D.  C.)  678;  De  Koven  v.  Lake 
Shore  &  M.  Co.  (1914),  216  Fed. 
(D.  C.)  955. 


INJUNCTION    FOR    BREACH    OF   CONTRACT 


111 


such  case  the  answer  is  deemed  to  overcome  the  equities 
of  the  bill.''8 

Injunctions  pendente  Ute  are  more  readily  granted  in 
cases  of  this  character,  as  the  delay  in  waiting  for  final 
hearing  will  frequently  be  tantamount  to  a  denial  of 
justice.''^ 

In  a  recent  case,'"  the  defendant,  an  actor,  had  con- 
tracted for  his  services.  He  agreed  that  his  services 
"would  ho  to  the  entire  satisfaction  of  the  employer." 
The  employer  also  had  the  right  to  terminate  the  services. 
Judge  ^lanton  decided  that  the  contract  was  so  unjust 
and  inequitable  that  while  the  employer  might  sue  at 
law,  he  could  not  restrain  the  actor  for  his  breach.  In 
particular,  the  court  said: 


'8  Woodside  v.  Tonopah  (1911), 
184  Fed.  (C.  C.)  358.  See  also: 
Sampson  &  Murdoch  v.  Seaver- 
Radford  Co.  (1904),  129  Fed. 
(C.  C.)  761;  Shubeii  v.  Woodward 
(1909),  167  Fed.  (C.  C.  A.)  47; 
Blounl  V.  Socicle  (1892),  .5.3  Fed. 
(C.  C.  A.)  98. 

^'■'  Comslock  V.  Lopokoioa  (1911), 
190  Fed.  (C.  C.)  599.  Plaintiffs, 
managers,  sued  to  enjoin  defend- 
ants under  a  noj^ative  covenant. 
Held  that  tiie  iletendants  being 
Russian  dancers  of  a  very  high 
order  and  unusual  attainments 
and  personal  characteristics,  they 
could  he  restraineil. 

Also  lield  that  while  the  con- 
tract  provided    tliat    they   were 


to  appear  only  in  first  class 
theatres  (not  vaudeville)  the  mere 
fact  tliat  in  one  theatre  a  vaude- 
ville act  was  introduced  was  not 
a  breach  of  the  contract. 

"In  actions  by  managers 
against  theatrical  artists,  relief 
to  be  of  any  avail  must  generally 
1)0  given  in  the  first  instance  be- 
cause such  artists  are  usuallj'  of 
doubtful  financial  responsibility 
and  the  season  for  which  they 
engage  is  over  before  tlic  cause 
can  be  reached  for  final  hearing." 
See  also:  Chappcll  v.  Fields 
(1914),  210  Fed.  (C.  C.  A.) 
864. 

*°  Kenyan  v.  Wcissherg  (1917), 
240  Fed.  (D.  C.)  536. 


112  THE    LAW   OF   MOTION   PICTURES 

"I  am  of  the  opinion  that  the  plaintiff  is  not  entitled 
to  the  reUef  he  seeks,  to  wit,  a  prehminary  injunction. 
It  confers  a  right  upon  plaintiff  to  bind  Weissberg  for  a 
period  of  five  years,  but  it  gives  no  corresponding  right 
to  compel  the  plaintiff  on  his  part  to  perform.  The 
plaintiff  may  discharge  Weissberg  at  any  time  when  the 
manager  determines  that  his  services  are  not  to  his  satis- 
faction. Nowhere  is  it  expressed  what  would  constitute 
satisfaction."  '^^ 

Section  38. — Services  to  be  "  satisfactory." 

Contracts  are  often  made  whereby  the  actor  agrees  to 
render  services  satisfactory  to  the  manager,  or  the  scenario 
writer  agrees  to  write  in  a  manner  satisfactory  to  the 
company,  or  some  other  work  in  connection  with  a  motion 
picture  production  is  to  be  done  in  a  hke  manner.  Serv- 
ices so  rendered  may  be  terminated  or  dispensed  with 
by  the  employer  at  any  time  at  his  own  whim  or  caprice. 
He  is  the  only  one  to  say  whether  the  services  are  satis- 
factory to  him  or  not,  and  the  court  and  jury  may  not 
substitute  their  judgment  for  his  own.-*- 

*^  See  on  question  of  -procedure  should  be  interesting  and  attrac- 

where  injunctive  order  is  disobeyed,  live,  involving  art,  taste,  fancy 

Ziegfeld  v.  Norworth  (1910),  140  and  judgment.    There  is  no  pro- 

A.  D.   (N.  Y.)  414;   125  N.  Y.  vision    in    the    contract    in    any 

8upp.    504;    (1911),    148   A.    D.  manner   limiting   the   publishers 

(X.  Y.)  185;  133  N.  Y.  Supp.  208.  in  the  exercise  of  their  judgment 

^=  Crawford  v.  Mail  &  Express  as  to  what  is  satisfactory,  but  if 

Pub.  Co.  (1900),  103  N.  Y.  401;  his  services  are  unsatisfactory  for 

57N.  E.  616.    "  He  was  not  called  any  reason   they   are   given   the 

upon  to  do  the  work  of  an  or-  right  to  terminate  the  employ- 

dinary    reporter.  .  .  .  The    evi-  ment  upon  a  week's  notice,  at 

dent  design  was  that  the  articles  any   time   they   so  elect."     Sec 


SERVICES    TO    BE    "  SAT1.S1-A(    lOlCV  "'  1  1  .'^> 

And  although  an  attempt  has  been  inadc  in  recent 
decisions  to  limit  the  enii)loyer  to  a  bona  fide  exereise  of 
his  right  and  not  to  permit  its  use  as  a  pretext  merely," 
it  is  difficult  to  see  how  this  may  consistently  be  done. 
There  are  no  limitations  upon  the  word  "satisfactory"; 
and  whether  the  employer's  dissatisfaction  arises  because 
of  the  employe's  work,  or  because  of  the  burden  of  ex- 
pense entailed  upon  him  in  i)aying  his  salary,  or  for  any 
other  one  of  a  thousand  reasons,  is  inuuatcrial.  We  can 
see  no  distinction. 

The  courts  which  make  a  distinctiqn  seem  to  take  for 
granted  that  "unsatisfactory"  is  equivalent  to  "incom- 
petency" and  that  the  employer  may  only  become  dis- 
satisfied with  the  quality  of  the  employe's  work. 

"Unsatisfactory"  and  "incompetent"  are  not  neces- 
sarily correlative  terms,  and  indeed  have  been  squarely 
distinguished.^^  Why  may  not  the  employer  become 
dissatisfied  with  the  fact  that  the  employe  is  in  his  em- 
ploy? As  these  contracts  are  usually  drawn,  it  seems 
reasonable  to  suppose  that  the  employer  has  that  jirivi- 
lege,  and  while  the  doctrine  is  harsh  and  seemingly  one- 
sided, the  parties  should  be  held  to  their  contract;  and  the 
decisions  in  the  great  majority  of  cases  hold  them  to  it.^^ 

also  Editorial  in  New  York  Law  (1S9G),  148  N.  Y.  252;  42  N.  E. 

Mournal,  Jan.  24,  1917.  G77.      See    in    tins    connection: 

".Im.  Music  Stores  x.  Kiisscll  Spain    v.    Manhatlan   Street    Co. 

(1916),  232  Fed.  (C.  C.  A.)  300;  (1917),  177  A.  D.  (X.  Y.)  GIO. 

CiVmonv.Lanison  Co.  (1916),  234  *' lirand   \.  Godwin    (1890),   8 

Fed.   (C.  C.  A.)  507;  Parker  v.  N.  Y.  Supp.  339;  (1890),  9  X.  Y. 

Hyde    &    Bchvian    Amuse.    Co.  Supp.  743. 

(1907),  53  Misc.  (X.  Y.)  549;  103  «  Kendall  v.  West  (1902),  106 

N.  Y.  Supp.  7Si;  Smith  v.  Robson  111.  221;  63  X.  E.  678.    Appellant 


114 


THE    LAW   OF   MOTION    PICTURES 


The  courts  have  been  at  pains  to  point  out  this  distinc- 
tion; that  a  contract  calling  for  ordinary  services  con- 
taining a  clause  for  ''satisfaction"  may  only  be  broken 
in  the  event  of  good  faith.  ^^  But  that,  regardless  of  good 
faith,  the  employer  may  discharge  the  employe  for 
''unsatisfactory"  service  where  the  work  involves  taste, 
fancy,    personal    satisfaction    or    judgment. ^^      But    as 


agreed  to  "render  satisfactory 
services"  and  appellee  agreed  to 
pay  for  "satisfactory  services." 
Held  that  the  appellant  did  not 
undertake  to  render  services 
which  should  satisfy  a  court  or 
jury,  but  undertook  to  satisfy 
the  taste,  fancy,  interest  and 
judgment  of  appellee.  It  was 
the  appellee  who  was  to  be  satis- 
fied, and  if  dissatisfied  he  had 
the  right  to  discharge  the  appel- 
lant at  any  time  for  any  reason, 
of  which  he  was  the  sole  judge. 

Peverly  v.  Poole  (1887),  19  Abb. 
N.  Cas.  (N.  Y.)  271,  note.  The 
ccMitract  contained  a  clause  pro- 
viding that  the  defendants  could 
discharge  the  plaintiff  if  his  ser- 
vices should  not  "in  the  estima- 
tion of  the"  defendants  "be 
satisfactorily  rendered."  Held  de- 
fendants could  discharge  plaintilT 
without  giving  any  reason  there- 
for and  it  could  not  be  left  to  a 
jury  to  say  whether  the  services 
were  satisfactorily  rendered. 

The  footnote  to  this  ca.se  sum- 


marizes all  the  early  decisions  in 
New  York  State  on  this  question. 

^^  Kramer  v.  Wein  (1915),  92 
Misc.  (N.  Y.)  159;  155  N.  Y. 
Supp.  193;  Fuller  v.  Downing 
(1907),  120  A.  D.  (N.  Y.)  36;  104 
N.  Y.  Supp.  991;  Brown  v.  Retsoff 
Mfg.  Co.  (1908),  127  A.  D.  (N.  Y.) 
368;  111  N.  Y.  Supp.  594;  Gins- 
berg V.  Friedman  (1911) ,  146  A.  D. 
(N.  Y.)  779;  131  N.  Y.  Supp.  517; 
Diamond  v.  Mendelsohn  (1913), 
156  A.  D.  (N.  Y.)  636;  141  N.  Y. 
Supp.  775;  Daversa  v.  Davidson's 
Sons  Co.  (1915),  89  Misc.  (N.  Y.) 
418;  151  N.  Y.  Supp.  872; 
Teichner  v.  Pope  Mfg.  Co.  (1900), 
125  Mich.  91;  83  N.  W.  1031; 
Sleveiis  V.  Chicago  Feather  Co. 
(1913),  178  111.  App.  455;  Watkins 
V.  Thurman  (1906),  98  S.  W. 
(Tex.)  904;  Bridgeford  v.  Meagher 
(1911),  144  Ky.  479;  139  8.  W. 
750. 

"  Saxe  V.  Shvhert  (1908),  57 
Misc.  (N.  Y.)  620;  108  N.  Y. 
Supp.  683.  Plaintifi",  an  actor, 
contracted    with    defendant    for 


SERVICES    TO    BE        SATISFACTOKY 


115 


almost  any  contract  concerning  itself  with  the  conception, 
acting,  directing  or  other  preparation  of  a  motion  picture 
involves  an  element  of  artistic  selection,  it  is  safe  to  say 
that  almost  every  contract  which  can  come  up  for  con- 
struction along  these  lines  will  fall  w^ithin  the  latter  rule. 
So  that  if  one  undertook  to  write  a  scenario  for  a  motion 
picture  company  to  be  "satisfactory"  to  it,  or  to  its 
"satisfaction,"  the  company  could  not  be  compelled  to 
accept  the  same/^^ 


his  services  whidi  were  to  be 
"satisfactorily  rendered"  to  the 
defendant.  Said  Judge  Gerard: 
"Where  a  contract  contains  a 
clause  that  the  services  are  to 
be  satisfactory  to  tlie  employer, 
he  has  the  right  to  discharge  if 
the  services  are  not  satisfactory 
to  him,  if  the  employment  is  of 
the  class  involving  taste,  fancy, 
interest,  personal  satisfaction  or 
judgment;  and  if  the  emploj'er 
discharges  the  employe  the  ques- 
tion whetlicr  or  not  the  services 
of  the  employe  are 'satisfactory 
is  to  be  determined  solely  by  the 
employer  and  not  by  tlie  court 
or  jury.  Hut  where  the  employ- 
ment is  not  of  that  class,  and 
where  the  master  has  the  power 
to  discharge  the  employe  if  sat- 
isfied in  good  faith  that  he  is 
incomiM'tcnt,  there  the  good  faith 
is  a  question  of  fact,  which  must 
be  submitted  to  the  jury." 


Defendant  was  sustained  and 
phiintifT  non-suited. 

Weaver  v.  Klaw  (1891),  16 
N.  Y.  Supp.  931.  Where  a  person 
is  engaged  and  agrees  to  render 
services  to  the  satisfaction  of  the 
employer,  "if  his  or  her  work  is 
not  satisfactory  to  the  employer, 
and  particularly  when  it  is  a 
matter  of  taste,  fancy  or  judg- 
ment, he  may  at  any  time  dis- 
charge him,  without  subjecting 
himself  to  further  claim."  Mc- 
Carthy, J.  It  is  error  to  leave 
the  question  as  to  the  comjx^ 
tency  of  the  employe  in  such 
ca.se,  to  the  jury. 

*^aienny  v.  Lacy  (1888),  1 
N.  Y.  Supp.  513.  PlaintifT 
agreed  to  complete  a  play  "to 
the  satisfaction"  of  the  defend- 
ant. Held  that  defendant  was 
not  compelled  to  take  and  pay 
for  the  play  unless  he  was  satis- 
fied with  it. 


116  THE    LAW   OF   MOTION   PICTURES 

The  dissatisfaction  can  only  be  exercised  by  the  person 
named  in  the  contract.  And  where  under  a  contract  a 
plaintiff  could  be  discharged  for  specified  reasons,  and  the 
defendant  was  to  be  "the  sole  arbiter  and  judge,"  it  was 
held  that  discharge  by  an  employe  of  defendant  for  one 
of  the  specified  reasons  did  not  reUeve  the  defendant 
from  HabiUty/^ 

But  there  is  a  distinction  between  "satisfactory"  serv- 
ices and  services  "satisfactorily"  performed.  In  the 
latter  case  the  employer  obviously  is  not  to  be  the  Judge 
of  whether  the  services  have  been  so  performed,  but  the 
jury  alone  may  pass  upon  it.^"  Where  the  employer  may 
"deem"  the  services  not  satisfactory,  this  gives  him  the 
absolute  right  to  discharge. ^^ 

The  employer  incurs  one  penalty,  however,  by  having 
a  "satisfaction"  clause.  In  the  event  that  the  employe 
breaches  the  contract,  an  injunction  to  decree  specific 
performance  will  not  issue,  and  he  cannot  be  restrained 
from  appearing  elsewhere,  no  matter  how  unique  or  ex- 
traordinary his  services.  This  has  lately  been  decided  by 
Judge  Manton  in  a  motion  picture  case  where  the  con- 
tract in  question  contained  a  clause  to  the  effect  that  the 
actor's  services  "would  be  to  the  entire  satisfaction  of 
the  employer."  There  were  other  clauses  in  the  con- 
tract, which  taken  together,  indicated  such  want  of 
mutuality  and  reciprocal  obligations  that  the  court  was 
constrained  to  hold  specific  performance  impossible. •'- 

«  Lipshulz    V.   Proclor    (1905),  "  Glyn  v.  Miner  (1894),  6  Misc. 

95  N.  Y.  Supp.  56G.  (N.  Y.)  637;  27  N.  Y.  Supp.  341. 

'">  Ilyilecher  V.  WilUnm.s  (1892),  ^^  Kenrjon  v.  Weisi^herg  (1917), 

18  N.  Y.  Supp.  580.  240  Fed.  (D.  C.)  53G. 


LENGTH    or   KNOAniCMKNT  117 

This  decision  is  of  prime  importance,  as  it  is  the  only 
theatrical  or  motion  picture  case  reported  where  a  con- 
tract containing  a  "satisfaction"  clause  was  held  in- 
capal)le  of  being  specifically  enforced  in  a  court  of  equity. 
The  theory  upon  which  it  is  decided  is  thoroughly  sound 
and  e(iuital)le,  and  we  believe  that  it  will  stand  as  the 
law. 

Section  39. — Length  of  engagement. 

It  is  not  easy  to  deternmie  in  every  instance  for  how 
long  a  period  the  actor  was  engaged.  The  elements 
that  enter  into  the  calculations  on  this  subject  are  the 
length  of  the  season,  the  run  of  the  play  and  the  special 
language  of  the  contract,  which  in  each  instance  must 
be  construed  on  its  own  merits. 

Wliilo,  as  a  general  proposition,  the  language  of  a 
contract  is  to  be  construed  by  the  court  alone,  ambiguities 
freciuently  occur  which  permit  of  the  introduction  of 
evidence  to  explain  or  amplify  them. 

The  contract  is  often  oral,  with  perhaps  a  letter  or 
two,  to  confirm  it.  Such  letters  or  writings  are  prop- 
erly admissible  in  evidence.^''  In  such  event  it  becomes 
a  question  of  fact,  and  by  that  token,  a  question  for  the 
jury  to  determine  for  how  long  a  period  the  actor  was  en- 
gaged.''' 

"fio?/.'    V.     Midland    Lyceum  12  Misc.  (X.  Y.)  83;  33  N.  Y. 

Bureau  (1912),  138  N.  W.  (Iowa)  Supp.    17.     See  also:   Loftus  v. 

384;  Perry  v.   Bates   (1906),   115  y?ofec?7s  (Eng.)  (1902),  18  T.  L.  R. 

A.   D.    (N.  Y.)  337;  100   N.   Y.  532;     Wade     v.     Robert     Arthur 

Supp.  881.  Theatre    Co.    (Eng.)    (1907),    24 

^*  Sherwood   v.    Cratie    (1895),  T.  L.  R.  77. 


118 


THE    LAW   OF   MOTION   PICTURES 


A  contract  employing  an  actor  for  the  "season"  is  not 
one  for  an  indefinite  hiring, '^^  although  in  such  a  case 
there  must  be  some  evidence  showing  how  far  the  season 
extends.  But  where  the  language  of  the  contract  as  to 
the  "season"  is  qualified,  the  court  will,  as  a  rule,  infer 
an  intention  to  terminate  sooner,  and  will  not  penalize 
a  defendant  who  has  been  compelled  to  close  the  play 
before  the  end  of  the  season. ^^ 

A  contract  for  a  "long  engagement"  is  uncertain  and 
indefinite." 

Nor  will  the  courts  enforce  a  contract  which  is  made 
subject  to  another  contract  which  is  to  be  substituted  in 
its  place  at  some  future  time,  unless  a  waiver  of  such 
substitution  is  proved.^^    And  it  is  for  the  jury  to  say 


^^  Spahn  V.  Winter  Garden 
(1912),  138  N.  Y.  Supp.  446. 

*«  Strakosch  v.  Strakosch  (1890) , 
11  N.  Y.  Supp.  251. 

"Gray  v.  Wulff  (1896),  68  111. 
App.  376.  A  leader  of  an  or- 
chestra sued  to  recover  salary, 
and  the  defense  was  incompetence 
and  justifiable  discharge.  Plain- 
tiff introduced  a  letter  in  whicli 
he  had  written  defendant  "if  you 
can  make  salary  SI.')  weekly 
payable  weekly,  and  can  guaran- 
tee me  a  long  engagement,"  to 
which  he  received  a  wire  to 
come  on. 

Held  that  tlic;  term  "long  cti- 
gagemenl"  was  uncertain  and  in- 
definite, and  that  defendant  had 


the  right  to  discharge  him  upon 
giving  him  tiie  usual  and  cus- 
tomary notice. 

London  Music  Hall  v.  Austin 
(Eng.)  (1908),  Times,  Dec.  26th. 
Construing  the  expression  "com- 
pletion of  the  engagement." 

^^  Walton  V.  Mather  (1896),  16 
Misc.  (N.  Y.)  546;  38  N.  Y. 
Supp.  782;  aff'g  15  Misc.  (N.  Y.) 
453.  Where  a  memorandum  is 
signed  which  reads  "subject  to 
the  conditions  and  regulations 
of  a  contract  whic^h  is  to  be  sub- 
stituted for  this  memorandum" 
there  is  no  binding  contract 
until  a  subsequent  contract  is 
drawn  unless  the;  parties  waive 
such    subsequent    contract    and 


TWO  wi:i:ks    notich  and  other  customs 


11'.) 


whether  or  n(jt  a  contract  whicli  luid  been  clumged  by 
one  of  the  parties  was,  as  so  modified,  accepted  by  the 
other  party. '^^ 

The  term  "season"  has  not  acquired  in  the  motion 
picture  in(histry  a  secondary  meaning,  nor  is  there  in  the 
industry  a  well-defined  i)eriod  of  time  during  wliich  actors 
arc  generally  engaged  in  posing,  as  there  is  in  the  theatrical 
profession. 

Section  40. — Two  weeks'  notice  and  other  customs. 

There  is  frequently  inserted  in  theatrical  contracts  a 
clause  or  phrase  by  which  either  side  is  to  be  relieved  of 
the  contract  upon  two  weeks'  notice.  Evidence  is  always 
admissible  to  show  the  meaning  of  that  phrase  as  well 
as  the  custom  in  the  profession.^"  The  custom  is  that 
that     the     memorandum      (1904),  99  A.  D.  (X.  Y.)  225;  90 


agree 

shall  be  regarded  as  the  contract. 
Such  waiver  may  be  express  or 
imphed  in  fact  from  the  conduct 
of  the  parties. 

Terry  v.  Moss's  Empires,  Lid. 
(Eng.)  (1915),  32  T.  L.  R.  92. 
Where  a  contract  between  a 
music-hall  artist  and  manager 
provided  that  the  artist  could 
transfer  the  dates  of  her  perform- 
ance and  other  dates  were  to  be 
given  her  in  lieu  of  the  dates 
transferred,  it  was  held  that 
neither  party  had  the  absolute 
right  to  fix  the  dates  but  that 
both  were  bound  to  act  reason- 
ably in  the  matter. 

"  McLaughlin  v.  Hammer  stein 


N.  Y.  Supp.  94,3.  After  the  con- 
tract was  signed  by  defendant, 
plaintiff  upon  signing  the  same 
crossed  out  one  of  its  provisions. 
Plaintiff  called  the  attention  of 
the  theatrical  agency  through 
which  he  had  secured  the  engage- 
ment to  the  erasure  and  asked 
thorn  to  inform  defendant  of 
the  same.  Not  hearing  from 
the  agency  plaintiff  entered  upon 
the  performance  of  the  contract 
a.ssuming  that  the  erasure  wtus 
satisfactory.  Held  a  question  for 
tlie  jury  whether  defendant  con- 
sented to  the  change. 

<^'^Hart    V.    Thompson    (1S99), 
39  A.  D.  (X.  Y.)  t)6S;  57  X.  Y. 


120 


THE    LAW   OF  MOTION   PICTURES 


where  the  actor  is  engaged  for  an  indefinite  period,  either 
party  may  terminate  the  contract  upon  two  weeks' 
notice." 

Supp.  334.  This  cause  came  up 
before  the  Appellate  Division  a 
second  time  after  a  trial  before  a 
jury  [see  10  A.  D.  (N.  Y.)  183 
for  opinion  of  Appellate  Division 
upon  appeal  taken  after  first 
trial]  In  affirming  the  judgment 
dismissing  the  complaint  the 
court  said:  "The  evidence  shows 
that  there  was  a  custom  at  the 
time  in  the  theatrical  profession 
where  no  definite  contract  of 
employment  has  been  made,  to 
give  on  the  one  part,  and  accept 
on  the  other,  a  notice  of  two 
weeks  to  terminate  an  employ- 
ment, and  that  in  pursuance  of 
such  custom,  that  notice  was 
given  to  the  plaintiff. 

Haines  v.  Thompson  (1893),  2 
Misc.  (N.  Y.)  385;  21  N.  Y. 
Supp.  991.  Where  an  actress 
was  employed  under  an  oral 
contract  "for  thirty-five  or  forty 
weeks,  perhaps  a  year,"  it  was 
hold  that  no  obligation  was 
thereby  created  to  continue  the 
employment  for  a  year,  and 
hence  the  contract  was  not 
within  the  Statute  of  Frauds, 
and  was  not  rccjuircd  to  be  in 
writing. 

Plaintiff   wa.s   employed    upon 


"two  weeks'  notice  either  side." 
He'd  that  evidence  of  the  mean- 
ing of  that  phrase  was  admissible. 

"The  attempted  proof  of  the 
meaning  of  the  phrase  '  two 
weeks'  notice  either  side'  was 
not  to  show  that  there  was  a 
custom  in  the  theatrical  pro- 
fession whereby  either  of  the 
parties  could  upon  two  weeks' 
notice  to  the  other  terminate  any 
contract;  but  that,  if  defendant's 
version  of  the  contract  be  true, 
a  seemingly  obscure  part  of  it 
was  understood  by  both  con- 
tracting parties  in  a  particular 
sense." 

See  also:  Newcomer  v.  Blaney 
(1900),  33  Misc.  (N.  Y.)  95;  67 
N.  Y.  Supp.  170;  Howe  v.  Robin- 
son (1895),  13  Misc.  (N.  Y.)  256; 
34  N.  Y.  Supp.  85. 

^^  DeCarlton  v.  Glaser  (1916), 
173  A.  D.  (N.  Y.)  966;  Briscoe  v. 
Liu  (1896),  19  Misc.  (N.  Y.)  5; 
42  N.  Y.  Supp.  908;  Hall  v. 
Aronson  (1891),  N.  Y.  Law 
Journal,  March  16;  Wall  v. 
Barley  (1872),  49  N.  Y.  464. 

Lovering  v.  Miller  (1907),  218 
Pa.  St.  212;  67  Atl.  209.  By  the 
contract  appellants  (Migagcd  plain- 
tiff for  a  "regular  season." 


NOTICE    AN'I)    OTHKR   rrSTOMS 


21 


But  where  the  contract  is  for  a  definite  term,  as  for  a 
season  or  year,  and  nothing  is  said  therein  as  to  the  two 
weeks'  notice,  evidence  of  such  custom  is  inadmissible.*^ 

The  notice  terminating  the  contract  need  not  be  in 
writing,  although  actual  notice  of  some  kind  is  rorjuired/''' 
and  such  notice  posted  on  the  "Call  Board"  of  the  theatre 
has  been  held  sufficient."* 

The  object  of  the  notice  is  to  liquidate  the  damages, 
and  in  some  measure  protect  the  actor  against  sudden 
loss  of  employment. ''''  The  actor  is  entitled  to  two 
weeks'  salary    after    such    notice    is    given    him,""    and 


"The  number  of  weeks  com- 
prised in  a  reguliir  season  was, 
however,  left  undefined  in  the 
writing,  and  evidence  was,  there- 
fore, prop)erly  admitted  to  show 
the  common  understanding  in 
the  theatrical  business  what  that 
term  included,  and  the  writing 
witii  tliis  evidence  necessarily 
went  to  the  jury  to  find  the  exact 
terms  of  the  contract."  See  also: 
Haag  v.  Rogers  (1911),  9  Ga. 
App.  650;  72  S.  E.  46. 

**  Camp  v.  Baldwin-Mellville 
Co.  (1909),  123  La.  258;  48  So. 
927.  An  actor  wa.s  engaged  by 
telegrams  "for  next  season." 
Subsequently  he  was  given  two 
weeks'  notice  and  discharged. 
Held  that  evidence  that  cither 
party  had  the  right  to  terminate 
the  contract  in  the  customary 
two  weeks'  notice  in  the  face  of 


the  telegrams  was  inadmissible. 
See  also:  Dearin^  v.  Pearson 
(1894),  8  Mi.sc.  (N.  Y.)  269;  28 
N.  Y.  Supp.  715,  on  refusal  of 
the  court  to  charge  on  the  two 
weeks'  custom. 

"  De  Gelkrt  v.  Poole  (1888),  2 
N.  Y.  Supp.  651. 

**  Clifford's  Olympia  Co.  v. 
Waters  (1898),  84  III.  App.  664. 

^'Dallas  V.  Murnj  (1902),  37 
Misc.  (X.  Y.)  599;  75  X.  Y. 
Supp.  1040. 

^Leslie  v.  Robie  (1903),  84 
N.  Y.  Supp.  289.  Where  the 
contract  provides  that  it  may 
be  terminated  by  giving  two 
weeks'  notice,  it  makes  no  dif- 
ference when  the  notice  is  given 
so  long  as  plaintiff  receives  .salary 
for  two  weeks  after  the  giving 
of  such  notice. 

Fish£r    V.    Monroe    (1893),   2 


122  THE    LAW   OF   MOTION   PICTURES 

actual  discharge  has  been  held  equivalent  to  notice  in 
writing/^ 

In  Fagan  v.  Aborn,^^  the  plaintiff  and  his  wife,  vaudeville 
performers,  contracted  for  four  weeks'  performances,  with 
a  three  weeks'  cancellation  clause.  Services  were  to  begin 
December  4th,  1905.  On  October  31st,  1905,  defendant 
wrote  to  plaintiffs  cancelling  the  engagement.  It  was 
held  that  the  notification  by  letter  was  a  cancellation 
under  the  contract  to  take  effect  three  weeks  after  its 
date,  and  the  complaint  was  dismissed. 

In  view  of  the  fact  that  the  motion  picture  business  is 
so  closely  aUied  to  the  theatrical  profession,  the  question 
may  arise  as  to  whether  or  not  such  custom  may  be  said 
to  prevail  in  the  motion  picture  business.  We  do  not 
believe  that  such  a  custom  obtains  in  the  motion  picture 
industry.  A  custom  develops  by  slow  growth  and  is  the 
result  of  long  usage.  It  concerns  itself  peculiarly  with 
its  own  business,  and  after  a  time  becomes  so  firmly  fixed 
and  is  so  well  known  to  the  parties  engaged  in  that  par- 
ticular business,  that  all  contracts  made  by  such  parties 
are  made  with  a  view  to  and  with  reference  to  such  custom. 

The  growth  of  the  motion  picture  industry  is  altogether 

Misc.    (N.    Y.)    326;   21    N.   Y.  "  MocGregrar  v.  Gi'^wore  (1898), 

Supp.    995.      Where    an    actress  25  Misc.  (N.  Y.)  312;  54  N.  Y. 

was      discharged      peremptorily  Supp.    589;    Watson    v.    Russell 

where  she  had  been  hired  on  two  (1890),  149  N.  Y.  388;  44  N.  E. 

weeks'  notice  slie  was  entitled  to  IGl;  De  Vere  v.  Gilmore  (1898), 

recover  two  weeks'  salary.  25  Misc.  (N.  Y.)  306;  54  N.  Y. 

"Sedgwick   on    Damages   lays  Supp.  587. 

down  tlio  doctrine  tliat  notice  in  '^^  Fayan   v.    Ahorn    (1906),   50 

such  ca.ses  was  provided  in  order  Misc.    (N.    Y.)    GtiG;    99    N.    Y. 

to  allow  for  liquidated  damages."  Supp.  479. 


TWO    WEEKS     NOTICE    AND    OTHER   CUSTOMS 


123 


too  roront  to  admit  of  the  dovolopmont  of  any  custom 
similar  to  the  one  above  mentioned.  Nor  can  it  be  argued 
that  by  analogy  or  association  with  the  theatrical  pro- 
fession the  custom  in  the  latter  has  become  the  custom 
in  the  fonner.  There  are  sufficient  elements  of  dissimilar- 
ity Ijctwcen  the  two  professions  to  refute  that  argument. 

In  addition  to  that  custom,  there  are  several  other 
customs  which  have  gro\vn  up  in  the  theatrical  profession. 
There  is  a  custom  that  a  "season"  or  a  "regular  season" 
begins  in  October  and  ends  in  May.*'^  It  has  also  been 
contended  that  when  a  theatre  is  booked  for  one  company 
it  may  not  at  matinees  book  another;""  that  the  "star" 
actor  has  the  privilege  of  selecting  parts  which  are  conso- 
nant with  his  abilities  ^^  and  that  he  is  to  receive  prominent 

** Strafford  v.  Stetson  (1910),  41      September,  and  shall  continue  as 


Pa.  Sup.  Ct.  560.  The  question 
as  to  the  length  of  "the  theatrical 
season  of  1902  and  1903"  was 
properly  submitted  to  the  jury. 

Lovering  v.  Miller  (1907),  218 
Pa.  St.  212;  67  Atl.  209.  In  this 
case  evidence  was  admissible  to 
show  a  custom  or  general  usage 
in  the  theatrical  profession  as 
to  the  number  of  weeks  constitut- 
inj;  a  "regular  season." 

Mcintosh  V.  Miner  (1899),  37 
A.  D.  (N.  Y.)  4S:^;  55  X.  Y.  Sujip. 
1074.  Defendants  engaged  plain- 
tiff as  a  star  for  three  seasons, 
the  first  season  to  coinmence 
"sometime  in  the  month  of 
November,  and  the  two  ensuing 
seasons  somethue  in  tlie  month  of 


long  as  the  same  may  be  miUually 
agreed  upon."  No  competent 
evidence  of  custom  as  to  the 
length  of  the  usual  theatrical 
season  having  been  introduced 
and  no  subsequent  agreement 
as  to  the  length  of  the  seasons 
having  been  made,  Held  tliat  tlie 
court  could  not  enforce  the  con- 
tract nor  ascertain  damages. 

Montague  v.  Flockton  (Eng.) 
(1873) ,  L.  R.  16  Eq.  189.  Custom 
that  the  manager  may  fix  the 
lengtli  of  the  sejuson. 

^o  Cotton  V.  Souyxes.  Strong  on 
"Dramatic  and  Musical  Law,  " 
3d  Kd.,  p.  25. 

"A'cWi/  V.  Caldwell  (1832),  4 
La.  38. 


124 


THE    LAW   OF   MOTION   PICTURES 


billing;  ^^  that  a  contract  for  ''year"  means  for  a  season, 
and  that  no  salaries  are  paid  while  the  theatre  is  shut;  "^ 
that  the  lease  of  a  theatre  building  may  be  cancelled  on  a 
month's  notice.'''  The  courts  have  also  permitted  evidence 
to  be  offered  tending  to  show  a  custom  as  to  the  manner 
of  paying  a  manager  his  salary  when  the  theatre  is  closed;" 
that  no  salaries  are  payable  during  rehearsals,  that  only 
half  salaries  are  payable  during  Christmas  hohday  week, 
and  that  all  salaries  are  payable  at  the  end  of  the  week7^ 
There  is  no  custom,  however,  that  a  grant  of  a  license  to 
produce  a  play  is  necessarily  a  "sole  and  exclusive"  one." 


"  Elen  V.  London  Music  Hall 
(Eng.)  (1906),  Times,  May  31, 
June  1. 

^^  Grant  v.  Maddox  (Eng.) 
(1846),  15  M.  &  W.  737.  De- 
fendant refused  to  pay  the  artist 
for  the  time  the  theatre  was 
closed.  Evidence  of  a  custom 
was  admitted  showing  that  while 
the  theatres  are  shut  no  salaries 
are  to  be  paid— that  a  contract 
for  one  or  more  years  really 
meant  for  one  or  more  seasons. 
See  however:  Mapleson  v.  Ben- 
tham  (1871)  (Eng.),  20  W.  R.  176; 
London  Music  Hall  v.  Austin 
(Eng.)  (1908),  Times,  Dec.  16. 

'"  Atncrican  Acad,  of  Music  v. 
Birt,  26  W.  N.  C.  (Pa.)  351. 

'"'Lcavilt  V.  Kennicott  (1895), 
157  111.  2.35;  41  N.  E.  737. 

'« Mapleson  v.  Scars  (Eng.) 
(1911),  105  L.  T.  639. 


"  Hart  V.  Cort  (1913),  83  Misc. 
(N.  Y.)  44;  144  N.  Y.  Supp.  627; 
aff'd  165  A.  D.  (N.  Y.)  583;  151 
N.  Y.  Supp.  4.  The  burden  was 
on  the  defendant  to  establish 
that  a  well-known  custom  existed 
and  that  the  parties  contracted 
with  the  intention  and  expecta- 
tion that  it  should  apply  to  their 
contract.  Here  the  custom 
claimed  was  that  a  grant  of  a 
license  to  produce  a  play  was  a 
"sole  and  exclusive"  one. 

For  other  cases  loherc  the  courts 
held  that  no  custom  existed  see: 
Chap-pell  V.  Harrison  (Eng.) 
(1910),  103  L.  T.  594.  No  cus- 
tom that  piano  makers  will  loan 
their  pianos  to  theatres  gratis. 

Lacii  V.  Osbaldiston  (I'^ng.) 
(1837),  8  C.  &  P.  80.  No  cu.stom 
that  the  manager  may  reserve  a 
private  box. 


CONTRACTS  FOR   WORK  ON  SUNDAY 


12o 


For  cither  party  t(j  avail  himself  of  such  custom  in  the 
suit,  he  must  plead  it  in  full,  and  allege  that  the  same 
was  well  known  to  the  parties  at  the  time  the  contract 
was  entered  into;  that  it  was  a  well-recognized  and 
established  custom  and  usage  in  the  profession,  and  that 
both  parties  contracted  with  reference  thereto.^^ 

At  the  trial  expert  evidence  of  members  of  the  profes- 
sion is  sufficient  to  prove  the  customs^^ 

Section  41. — Contracts  for  work  on  Sunday. 

^^^lile  Sunday,  under  the  connnon  law,  was  not  re- 
garded as  a  dies  non,  we  find  early  statutes  in  England 


Wyatt  V.  Phipps  (Eng.)  (1896), 
40  Sol.  Jo.  781.  No  custom  that 
a  tour  on  the  road  is  for  any 
number  of  weeks. 

"De  Carlton  v.  Glaser  (1916), 
173  A.  D.  (X.  Y.)  966;  Hart  v. 
Cort  (1913),  S3  Misc.  (X.  Y.)  44; 
1-14  N.  Y.  Supp.  627;  afT'd  165 
A.  D.  (X.  Y.)  583;  151  X.  Y. 
Supp.  4;  White  v.  Henderson 
(Eng.)  (1885),2T.  L.  R.  119. 

Newhall  V.  Appkton  (1889), 
114  X.  Y.  140;  21  X.  E.  105. 
"Every  legal  contract  is  to  l^c 
interpreted  in  accordance  with 
tlic  intention  of  the  parties  mak- 
ing it,  and,  usage  wlien  it  is  rea- 
sonable, uniform,  well-settled,  not 
in  opposition  to  fixed  rules  of 
law,  not  in  contradiction  of  the 
express  terms  of  the  contract,  is 
deemed  to  form  a  part  of  the 


contract,  and  to  enter  into  the 
intention  of  the  parties,  when  it 
is  so  far  established  and  so  far 
known  to  the  parties,  that  it 
must  be  supf>osed  that  their 
contract  was  made  with  reference 
to  it.  {Wales  v.  Baily,  49  X.  Y. 
464.)  And  evidence  is  always 
admissible  to  explain  the  mean- 
ing which  usage  has  given  to 
words  or  terms  as  used  in  any 
particular  trade  or  business,  as  a 
means  of  enabling  the  court  to 
declare  what  the  language  of  the 
contract  did  actually  express  to 
the  parties.  [Wharton  on  Evi- 
tlence.  Section  962;  Dana  v. 
Fielder,  12  X.  Y.  40;  Hinlon  v. 
Locke,  h  Hil.  (X.  Y.)  437.]" 

"  See  cases  cited  in  footnote  78 
above. 


126 


THE    LAW   OF   MOTION   PICTURES 


prohibiting  performances  on  that  day.  The  question 
arises— is  a  theatrical  contract  for  a  Sunday  performance 
vaUd  and  enforcible? 

The  weight  of  authority  seems  to  indicate  that  such  a 
contract  is  void.  In  New  York,  for  instance,  the  older 
line  of  cases  established  the  invaUdity  of  such  contracts 
without  much  discussion,  irrespective  of  whether  the 
performance  contemplated  on  Sunday  was  permitted  by 
the  public  authorities  or  not,^^  although  later  the  courts 
seemed  to  lay  more  emphasis  on  the  fact  that  such  per- 
formances were  within  the  prohibition  of  the  Sunday 
statutes.^^     Finally,  in  the  case  of  Strauss  v.  Hammer- 


80  Bilordeaux  v.  Bencke  Lilh. 
Co.  (1889),  16  Daly  (N.  Y.),  78; 
9  N.  Y.  Supp.  507;  Hallen  v. 
Thompson  (1905), 48  Misc.  (N.  Y.) 
642;96N.  Y.  Supp.  142. 

^^  Schwab  V.  Muller  (1916), 
N.  Y.  Law  Journal,  Feb.  18. 
"The  contract  between  the  par- 
tics  provided  that  the  defendant 
engaged  five  cabaret  singers  and 
musicians  under  the  manage- 
ment and  control  of  the  plaintiff 
for  a  period  of  ten  weeks  to  per- 
form at  his  place  of  business  in 
this  city.  That  the  employment 
of  said  cabaret  singers  and  musi- 
cians should  be  between  the 
hours  of  three  p.  M.  and  six  p.  m. 
each  and  every  afternoon  and 
from  seven  v.  M.  to  the  time  of 
closing  of  th(!  cafe  and  restaurant ; 
that  there  should  be  at  least  three 


performers  (musicians  and  sing- 
ers) every  week  day  and  on 
Saturdays,  Sundays  and  holidays 
there  should  be  at  least  five  per- 
formers (musicians  and  singers). 
In  my  opinion  the  contract  pro- 
vided for  labor  on  Sundays  that 
was  not  a  necessity  or  charity.  It 
is  therefore  in  violation  of  Sec- 
tion 2143  of  the  Penal  Law.  It 
hardly  can  be  said  that  such 
work  is  needful  in  the  operation 
of  a  restaurant  or  cafe  for  the 
good  order,  health  or  comfort  of 
the  community.  The  case  of 
Albera  v.  SciarcUi,  131  N.  Y. 
Supp.  889,  is  not  exactly  in  point 
as  in  that  case  the  employe  was 
recjuired  to  render  his  service^ 
upon  the  Sabbath  day  at  such 
theatres  and  in  such  characters 
in  wliich  he  might  be  caat  accord- 


CONTRACTS    KOH    WOUFv    ON    SUNDAY 


stein, ^'-  the  Api)ellate  Divisi(jn  of  New   York  made  the 
nice  distinction  that  the  parties  would  not  be  presumed 


iii<5  to  the  direction  of  the  em- 
ployer; but  tlie  principle  decided 
in  that  case  is  in  my  opinion  ai> 
plicaijle  to  this  in  that  the  con- 
tract of  employment  provides  for 
Sunday  performances  of  a  charac- 
ter prohibited  by  the  laws  of  the 
state  and  hence  is  void  and  un- 
enforceable. The  demurrer  is 
sustained  and  defendant's  mo- 
tion for  judgment  thereon 
pranted." 

Albcm  V.  Sciardli  (1911),  72 
Misc.  (N.  Y.)  496;  131  N.  Y. 
Supp.  889.  The  contract  pro- 
vided: "It  is  agreed  and  under- 
stood by  both  i)arties  that  in  the 
number  of  performances  to  be 
given  each  week,  Sunday  per- 
formances shall  also  be  included 
in  the  week  witliout  extra  com- 
pensation to  the  party  of  the 
second  part."  Held  entire  con- 
tract was  void  because: 

Contract  was  not  severable, 
hence  entire  contract  was  void 
and  unenforceable  as  such  per- 
formances arc  prohibited  by  stat- 
ute and  as  contract  was  silent  as  to 
place  of  performance,  cf)urt  would 
presume  that  contract  was  i)er- 
formed  witiiin  state  where  it  was 
made.  See  also:  Smith  v.  Wilcox 
(1802),  24   N.   Y.  353;  Lindcn- 


midler  v.  People  (1800),  33  Barb. 
(X.  Y.)  538. 

"'  Strauss  v.  Hammer  stein 
(1912),  152  A.  D.  (X.  Y.)  128; 
13G  X.  Y.  Supp.  013. 

See  also:  Nelson  v.  A.  H. 
Woods  Prod.  Co.  (1913),  X.  Y. 
Law  Journal,  January  9.  ".  .  . 
Finally  the  defendant  claims  that 
the  contract  is  void  on  its  face 
and  no  recovery  can  be  had 
thereon  for  the  reason  that  it 
provides  for  Sunday  perform- 
ances by  the  plaintiff,  contrary 
to  the  Penal  Law.  The  provision 
of  the 'agreement  referred  to  is 
as  follows:  'It  is  understood  and 
agreed  that  in  the  event  that  tlie 
party  of  the  first  part  shall  decide 
to  give  Sunday  concerts  or  per- 
formances, such  concerts  or 
performances,  shall  be  considered 
part  of  the  regular  weekly  series, 
and  the  party  of  the  second  part 
shall  render  services  tliereat  with- 
out e.\tra  compensation.'  Though 
a  contract  for  theatrical  per- 
formances to  be  rendered  in  this 
state  on  Sunday  is  illegal  and 
recovery  camiot  be  had  under  it 
{Albcra  v.  Sciardti,  72  Misc.  490), 
I  am  of  the  oi)inion  that  this  is 
not  such  a  contract.  There  is 
here   no   absolute   provision   for 


128 


THE    LAW   OF   MOTION   PICTURES 


to  have  intended  a  violation  of  the  statutes,  and  that  if 
Sunday  performances  were  contemplated,  they  would  be 
such  as  were  permitted  by  the  authorities.  The  same 
rule  was  declared  in  Pennsylvania.^^ 

This  is  the  better  rule.  There  has  been  an  increasing 
demand  on  the  part  of  the  public  for  Sunday  theatrical 
and  motion  picture  entertainments,  and  the  law-making 
bodies  have  given  voice  to  this  demand  by  the  enactment 
of  special  statutes  permitting  the  giving  of  certain  kinds 
of  performances  on  Sunday. 

How  then  may  it  be  said  that  a  contract  which  calls  for 
a  performance  of  the  kind  especially  permitted  by  statute 


performances  on  Sunday.  Such 
performances  were  to  be  entirely 
at  the  option  of  the  defendant. 
The  law  will  not  presume  that 
the  defendant  would  exercise  his 
option  in  breach  of  the  law.  If 
he  should  attempt  to  exercise  his 
option  he  could  not  enforce  it. 
This  provision  can  be  declared 
void  without  destroying  the  con- 
tract, for  this  provision  is  clearly 
severable.  The  contract  is  capa- 
ble of  being  legally  performed, 
and  this  court  will  not  say  that 
it  is  void  l)ecause  of  the  bare 
possibility  of  an  attempt  to  re- 
quire an  illegal  performance." 

*'  Zenalello  v.  Ilammerstcin 
(1911),  231  Pa.  56;  70  Atl.  922. 
IMaintifT  there  bound  himself  "to 
sing  in  his  capacity  of  tenor  and 


shall  sing  in  Italian  in  New  York 
and  in  the  United  States  of 
America  the  operas  of  his  reper- 
tory and  those  which  shall  be 
indicated  to  him." 

The  court  held  that  while  the 
contract  provided  for  Zcnatello 
singing  on  week  days  and  Sun- 
days, the  presumption  was  that 
the  defendant  would  not  require 
liim  to  sing  on  Sunday  in  New 
York,  but  in  places  where  such 
singing  was  permitted.  The  law 
would  not  presume  that  the 
parties  would  do  an  unlawful 
thing. 

The  validity  of  a  contract  as 
to  matters  affecting  its  perform- 
ance is  to  be  determined  by  the 
laws  of  the  place  of  performance 
and  not  the  place  of  execution. 


CONTRACTS  FOR  WORK  0\  SUNDAY        120 

on  Sunday,  is  void?  To  hold  that  it  is  so  seeins  illogical 
and  absurd. 

Motion  pictures  arc  permitted  to  be  shown  in  New- 
York  City.^^  Under  the  circumstances,  a  contract  be- 
tween the  releasing  company  and  the  exhibitor  for  the 
rental  of  a  Sunday  lilni  would  be  a  valid  contract.  Other- 
wise the  ordinance  above  mentioned  is  without  any  effect. 
What  would  be  the  jnirpose  of  keeping  it  and  similar 
statutes  upon  the  books?  If  a  tlmig  may  legally  be  done 
it  may  legally  be  contracted  for.""' 

It  is  only  when  the  contract  prima  facie  calls  for  the 
doing  of  an  act  which  would  be  in  direct  contravention 
to  a  Sunday  statute,  that  it  can  be  said  to  be  an  invalid 
contract. 

These  distinctions,  however,  arc  not  made  in  other 
jurisdictions,"^  although  the  courts  have  gone  so  far  as  to 

'<  Chapter  3,  Article  1,  Sec-  provided  that  such  above  men- 
tion 10,  of  the  Code  of  Ordinances  tioned  entertainments  shall  be  so 
of  the  City  of  New  York:  "Sun-  given  as  not  to  disturb  the  public 
day  observance:  No  person  shall  peace  or  amount  to  a  serious 
exhibit  on  the  first  day  of  the  interruption  of  the  repose  and 
week,  commonly  calUxl  Sunday,  religious  liberty  of  the  cora- 
to  the  public,  in  any  building  .  .  .  nuinity.  ,  .  ." 
the  performance  of  any  tragedy,  ''■'  Bergcre  v.  Park^^r  (1914),  170 
comedy,  opera,  ballet,  farce  ...  S.  W.  (Tex.)  808.  A  contract 
or  rope  dancers;  but  nothing  made  through  a  booking  agent 
herein  contained  shall  be  deemed  for  services  upon  Sunday  only 
to  prohibit  at  any  such  place  or  irhcre  siich  services  might  be  laic- 
placeson  the  first  day  of  the  week,  fully  rendered  on  that  day,  is  a 
commonly  called  Sunday,  .sacred  valid  contract.  See  also:  Wirth  v. 
or  other  educational,  vocal  or  Ccdhnun  (1002),  64  Nebr.  316; 
instrumental  concerts,  lectures,  So  N.  W.  78.^. 
addresses,  recitations  and  singing,  •*  Stewart  v.  Thayer  (1897),  16S 


130 


THE   LAW  OF  MOTION   PICTURES 


attempt  to  split  up  or  sever  the  contract;  but  where  they 
have  been  unable  to  do  so,  and  have  been  constrained  to 
hold  the  contract  entire  and  indivisible,  they  have  de- 
clared it  invalid. ^^ 

The  Federal  courts  also  hold  such  contracts  mvalid, 
where  they  are  made  in  contravention  of  a  state  statute.^^ 

But  such  contracts  must  be  Uberally  construed  with  a 
view  to  their  enforcibility.  And  where  a  contract  was 
made  between  the  manager  of  a  music  hall,  and  a  per- 
former, whereby  the  latter  agreed  to  work  ''every  even- 
ing" in  the  week,  it  was  held  that  Sunday  being  a  dies  non 
in  theatrical  matters,  the  contract  did  not  contemplate 
Sunday  performances.^^ 

A  contract  providing  for  the  posing  of  the  actor  on 


Mass.  519;  47  N.  E.  420.  Plain- 
tiff sued  to  recover  for  actual 
work  performed  in  playing  witli 
a  band  of  musicians  at  defend- 
ant's resort.  Some  of  the  work 
was  performed  on  Sunday.  Held 
that  the  statute  against  Sunday 
violations  precluded  a  recovery, 
as  the  entire  contract  was  void.  . 
*^  The  Fountain  Sq.  Theatre  v. 
Evans  (1896),  4  Ohio  Dec.  151. 
Plaintiff  brought  suit  for  breach 
of  a  contract  to  jierform  at  its 
theatre.  Defendant  set  up  as  a 
demurrer  that  the  dates  of  per- 
formance stipulated  in  the  con- 
tract included  a  Sunday.  The 
court  hold  that  as  the  contract 
was  entire,  this  went  to  the  es- 


sence of  it,  and  the  same  was 
void. 

*'  La  Crandall  v.  Ledbitter 
(1908),  159  Fed.  (C.  C.  A.)  702. 
A  contract  providing  for  per- 
formances of  artists  on  Sunday  in 
theatres  where  admission  fees 
are  charged  is  unenforceable  in 
the  state  of  Texas  in  so  far  as  it 
includes  performances  on  Sunday 
under  Article  199  of  the  Texas 
Penal  Code. 

*»  KcUi/  V.  London  Pavilion 
(Eng.)  (1897),  77  L.  T.  21.').  Ac- 
cordingly where  the  artist  sang 
at  a  social  club  on  Sunday  even- 
ing without  pay,  this  was  held 
not  to  l)e  a  performance  which 
would  breach  the  contract. 


SERVICES       ACTUALLY    PEKFORMED 


131 


Sunday  i.s  void  in  its  entirety.  Where  a  contract  provides 
for  the  entire  services  of  the  actor,  the  producer  may  not 
regard  a  refusal  of  the  actor  to  pose  on  Sunday  as  a 
breach  of  the  contract. 


Section  42. — Services  "  actually  performed." 

Where  the  actor  is  hired  for  a  definite  term,  the  pro- 
ducer is  bound  to  furnish  him  with  employment.  To  in- 
sert in  the  contract  that  the  actor  will  receive  pay  only 
"when  services  arc  rendered"  or  "when  he  shall  actually 
perform"  does  not  relieve  the  manager  of  responsibility 
for  the  entire  contract  period. '•*°  This  is  the  later  doctrine, 
and  seems  to  have  overruled  the  earlier  cases  which  per- 
mitted the  manager  to  provide  an  actor  with  work  when- 
ever he  felt  inclined  that  way.^^    Although  in  these  deci- 


^Dixerj  v.  .1.  //.  Wood  Prod. 
Co.  (1915),  168  A.  D.  (X.  Y.) 
337;  154  X.  Y.  Supp.  49;  aff'g  88 
Misc.  (X.  Y.)  506;  151  N.  Y. 
Supp.  224.  Here  the  plaintifT 
wa.s  engaged  for  a  definite  period, 
and  agreed  not  to  work  for  any 
other  firm,  i)crson,  or  corporation 
during  tlie  term  of  the  contract. 
He  was  to  be  paid  the  sum  of 
S6(X)  a  week  during  each  and 
every  week  when  his  services 
were  actually  rendered.  The 
defendant  was  given  work  for 
one  week  only.  He  sued  for  the 
remainiler  of  the  contract  period. 
The  court  held  that  the  phra.><e 
"when  .services  are  rendered"  in- 


tended to  mean  no  more  than 
the  due  performance  of  the  con- 
tract of  employment  by  the 
plaintifT.  If  the  plaintifT  was 
ready  and  willing  to  {x^rform  the 
defendant  was  hound  to  pay  him 
for  the  entire  contract  period. 

'•"  Pollock  V.  ^hubai  (1911),  146 
A.  D.  (X.  Y.)  628;  131  X.  Y. 
Supp.  386.  On  apjx'al  from  order 
denying  motion  for  judgment 
on  the  pleadings.  Order  re- 
versed and  motion  granted.  Con- 
tract provided  that  plaintifT  was 
to  be  paid  "for  each  and  every 
week  that  plaintilT  pul)licly  ap- 
peared and  ix?rformed."  lui- 
gagement    was    for    a    theatrical 


132 


THE    LAW   OF   MOTION   PICTURES 


sions  the  courts  lay  stress  upon  the  language  used  in  the 
contract,  it  is  apparent  that  the  policy  of  the  coui't  wher- 
ever possible,  is  to  hold  the  defendant  under  such  a  con- 
tract bound  to  furnish  the  employment  and  to  pay 
therefor.^- 

This  kind  of  a  contract  is  similar  to  the  contract  which 
provides  "no  play,  no  pay,"  and  was  intended  by  the 
managers  to  give  them  the  privilege  of  paying  for  actual 
performances  only.  The  EngUsh  courts  construed  that 
expression  to  mean  that  the  actor  would  not  be  entitled 
to  compensation  where  he  "could  not"  play  or  where  he 
"would  not"  play,  but  that  the  manager  was  at  all  events 
bound  to  pay  when  the  actor  was  ready,  able  and  willing 
to  perform.^^ 


season.  Held  that  defendant 
was  under  no  obligation  to  pay 
plaintiff  unless  he  publicly  ap- 
peared and  performed  even 
though  his  failure  to  so  appear 
was  defendant's  refusal  to  fur- 
nish plaintiff  with  work. 

92  King  V.  Will  J.  Block  Amuse- 
ment Co.  (1908),  115  N.  Y.  Supp. 
243;  aff'd  in  132  A.  D.  (N.  Y.) 
925;  116  N.  Y.  Supp.  1139.  De- 
fendant engaged  plaintiff  as  an 
actress  for  thirty  weeks  and  for 
a  greater  period  if  the  production 
was  a  success;  plaintiff  was  to 
select  a  play  which  would  be 
Batisfactory  to  defendant.  I'lain- 
tiff  selected  a  play  and  dpfendant 
accepted  it.    Plaintiff  was  ready 


and  willing  to  perform  but  de- 
fendant failed  and  refused  to 
furnish  employment  to  the  plain- 
tiff. Held  that  plaintiff  was  en- 
titled to  recover  as  damages, 
compensation  agreed  to  be  paid 
for  thirty  weeks  less  any  moneys 
earned  by  plaintiff  during  con- 
tract period.  Held  further  that 
term  "actuallt/  performed"  as 
used  in  agreement  did  not  excuse 
defendant  where  by  its  own 
wrongful  act  it  prevented  plain- 
tiff from  actually  performing. 

^^Gilbnrs  v.  Jefferson  (Eng.) 
(1902),  Strong  on  "Dramatic  and 
Musical  Law,"  3d  Ed.,  p.  29. 
"Xo  play,  no  pay,"  meant  either 
"you  won't  play,"  or  "you  can't 


SUBSTANTIAL   PERFORMANCE 


133 


Where  performance  is  a  condition  precedent  to  pay- 
ment, fullilhnent  must  be  shown  in  order  to  secure  a  re- 
covery; but  when  performance  is  prevented  or  rendered 
impossible  by  the  sickness  or  death  of  the  actor,  a  re- 
covery may  be  had  on  a  quantum  meruit.^* 

Section  43. — Substantial  performance. 

The  actor  who  has  been  engaged  for  a  stated  period, 
and  has  rendered  his  services  during  its  entire  length,  is 
entitlc^d  to  recover  for  the  full  period.  His  right  is  not 
affected  by  reason  of  the  fact  that  for  a  short  interval 
within  that  period  the  producer  had  no  work  for  him  and 
the  actor  was  perforce  obliged  to  remain  idle.^^ 


play,"  and  did  not  give  the 
tlieatre  manager  the  right  to  ar- 
bitrarily rescind  the  contract. 

»*  Wolfe  V.  Howes  (1S59),  20 
N.  Y.  197.  See  in  this  connection 
Sections  10  and  14. 

'0  Sterling  v.  Bock  (1SS7),  37 
Minn.  29;  32  X.  W.  8G5.  The 
action  \v;vs  brought  against  the 
defendatits  to  recover  for  services 
rendered  by  the  plaintifif  as  an 
actress  under  a  written  contract. 

Held  that  the  evidence  sus- 
tained the  finding  that  the  plain- 
tiff performed  the  services  con- 
tracted for,  although  she  did  not 
act  in  any  play  during  the  week 
in  question,  not  having  been 
called  upon  to  do  so.  The  con- 
tract was  for  the  services  of  an 


actress  for  a  period  of  about  six 
months  at  a  stipulated  price  per 
week,  and  it  was  immaterial  that 
during  a  particular  week  her 
active  service  was  not  required. 
Coghlan  v.  Stetson  (1SS4),  19 
Fed.  (C.  C.)  727.  Plaintiff  was 
engaged  to  appear  at  the  Fifth 
Avenue  Theatre  and  to  api)car 
as  leading  man  at  SlOO  a  per- 
formance for  seven  performances 
each  week.  After  playing  for 
five  weeks,  he  was  not  assigned 
to  any  part  for  three  weeks. 
Subsequently  he  appeared  in 
Boston  under  the  defendant's 
auspices,  and  then  brought  this 
action  to  recover  S2,100  for  the 
aforesaid  three  weeks  during 
which  he  was  idle. 


134 


THE    LAW   OF   MOTION   PICTURES 


The  actor  is  also  entitled  to  recover  for  the  time  actually 
spent  in  traveUing  from  one  place  of  performance  to 
another.^^ 

And  where  one  actor  in  a  troupe  was  substituted  for 
another,  it  was  held  the  services  were  such  as  to  permit 
a  recovery .^^ 

But  where  two  performers  out  of  thirteen  and  twelve 
musicians  out  of  thirty  are  missing,  there  is  a  failure  of 
compHance  with  the  terms  of  the  agreement.^^ 


Held  that  plaintiff  waived  no 
rights  by  appearing  in  Boston  and 
that  there  must  be  a  reasonable 
construction  of  the  contract — 
that  it  mattered  nothing  whether 
he  sued  as  damages  or  wages, 
since  he  asked  for  a  specified  sum 
of  money,  pleaded  all  the  facts, 
and  defendants  suffered  no  sur- 
prise. Plaintiff  was  given  judg- 
ment. 

9' Day  V.  Klnw  (1908),  112 
N.  Y.  Supp.  1072.  The  defend- 
ants agreed  to  employ  plaintiff 
f(jr  twenty-five  consecutive  weeks 
and  pay  him  a  stii)ulatcd  salary 
per  week.  Plaintiff  spent  two 
weeks  during  tlie  twenty-five 
weeks  in  travelling  to  certain 
theatres  to  perform  pursuant  to 
defendant's  instructions.  Action 
brought  to  recover  salary  for 
two  weeks,  also  certain  railroad 
faro.  .Judgment  for  plaintiff  af- 
firmed. 


97  Columbian  Lyceum  Bureau  v. 
Sherman.  (1909),  19  N.  D.  58;  121 
N.  W.  765.  Plaintiff  agreed  to 
furnish  six  entertainments  to  de- 
fendant, stipulating  that  it  was 
not  to  be  liable  if  artists  failed  to 
appear  because  of  illness  or  other 
unavoidable  cause,  also  that  it 
might  at  its  option  substitute 
another  artist.  It  was  held  that 
plaintiff  could  recover  contract 
price  where  because  of  illness  of 
the  artist  who  had  been  originally 
booked  it  substituted  another 
performer. 

^'Charley  v.  Potthoff  (1903), 
118  Wis.  258;  95  N.  W.  124.  The 
fact  that  defendant  made  some 
of  thfe  payments  required  to  be 
made  under  the  contract  did  not 
constitute  a  waiver  of  his  right 
to  counterclaim  for  damages  for 
inferior  performances.  Defend- 
ant could  permit  plaintiff  to 
j)roceed  with  defective  perform- 


AyTiriPATOUV    HRKACH 


liif) 


Section  44. — Anticipatory  breach. 

W  here  an  aetor  wliu  lias  contracted  for  hi.s  .services 
for  a  period  is  notified,  before  the  commencement  of 
such  period,  that  he  will  not  be  required,  he  need  not  go 
through  the  idle  ceremony  of  presenting  himself  for  per- 
fonnance  or  tendering  his  services.  This  is  especially 
of  importance  since  the  services  may  have  been  con- 
tracted to  be  given  at  a  distant  place.^^ 

Once  the  contract  is  breached,  and  treated  as  such  by 
the  other  party,  it  cannot  be  kept  ahve  by  either  party.  ^^ 


ances  without  waiving  his  right 
to  damages  since  to  have  pre- 
vented tlie  continuance  of  such 
performances  would  have  done 
serious  injury  to  him  (defendant 
had  made  an  advance  sale  of 
seats,  etc.). 

^Goddard  v.  Morrissey  (1899), 
172  Mass.  594;  53  N.  E.  207. 
PlaintilT  and  his  company  were 
engaged  to  perform  for  defendant 
for  one  week.  Before  date  of 
first  performance  plaintiff  was 
notified  that  because  of  defend- 
ant's inal)ility  to  secure  hall, 
plaintifT  and  his  company  would 
not  be  re(iuired.  Jury  gave  ver- 
dict for  less  tlian  amount  agreed 
to  be  paid  plaintiff  for  week's 
work,  although  plaintifT  did  not 
earn  any  other  moneys  during 
that  week.  On  appeal  by  de- 
fendant it  is  held: 


(1)  It  was  not  neces.sar>'  for 
plaintifT  and  company  to  present 
themselves  ready  to  work  on  the 
day  originally  agreed  upon  where 
he  wiis  notified  before  that  day 
that  his  services  would  not  be 
requiretl. 

(2)  The  contention  that  jur>' 
should  have  found  for  full  amount 
or  for  nominal  amount  was  in- 
valid. Defendant  was  not 
harmed  by  such  finding. 

^<*' Grcenwall  Thcat.  Circ.  v. 
Markou'itz  (1904),  97  Tex.  479; 
79  S.  W.  10G9.  The  manager  of 
a  theatre,  after  he  is  informed  of 
his  emploj'er's  intention  to  breach 
the  contract,  cannot,  where  he 
himself  has  treated  the  contract 
as  breached,  keep  it  alive,  but 
must  sue  on  the  breach.  Sec  also: 
Grnu  v.  McVickar  (1S74),  8 
Biss.  7;  Fed.  Cas.  No.  570S. 


136 


THE    LAW   OF   MOTION   PICTURES 


Section  45. — Exposure  to  obscenity,  ridicule,  degrada- 
tion, etc. 

WTiere  the  actor  has  contracted  to  play  in  any  part 
which  may  be  assigned  to  him,  he  is  bound  by  the  con- 
tract, and  must  obey  the  instructions  of  the  director 
in  so  far  as  they  are  reasonable  and  consistent  with  his 
skill  and  reputation  as  an  actor.  And  in  such  a  contract 
an  actress  will  not  be  permitted  to  maintain  the  defense 
that  she  has  been  ordered  to  don  an  immodest  costume.^" 

i»i  Duff  V.  Ricssell   (1892) ,   14         Morrison  v.  Hurtig  &  Seaman 
N.  Y.  Supp.  134;  aff'd  on  opinion 
below  in  133  N.  Y.  678;  31  N.  E. 
622. 

Dis  Debar  v.  Hoeffle,  N.  Y.  Law 
Journal,  vol.  4,  1475.  Plaintiff 
sued  for  damages  in  that  defend- 
ant had  published  her  picture 
representing  her  in  the  garb  of 
Cupid.  Plaintiff  was  an  actress, 
and  had  contracted  to  appear  in 
a  plaj^,  and  assume  any  part 
assigned  to  her.  Judge  McAdam 
held  that  having  contracted  to 
appear  thus,  it  was  her  duty  to 
dress  in  any  i)art  and  in  any  cos- 
tume assigned  to  her,  and  she 
could  not  complain.  That  it 
was  one  of  the  incidents  of  an 
actress's  life  to  dress  in  costumes 
that  were  not  always  the  height 
of  modesty,  and  that  she  had 
no  more  cause  for  complaint  than 
an  artist's  model  would  have 
because  slio  might  be  recjuircd  to 
pose  in  an  immodest  costume. 


(1910),  198  N.  Y.  352;  91  N.  E. 
842.  Plaintiffs  (husband  and 
wife)  were  engaged  to  act  for 
defendants.  The  plaintiffs  agreed 
to  furnish  "at  their  own  cost 
and  expense,  all  necessary  cos- 
tumes, wigs,  shoes,  boots,  tights, 
stockings  and  gloves  in  and  about 
their  performances,"  to  "pay 
strict  regard  to  make-up  in  the 
dressing  of  characters,"  and  to 
"abide  by  and  conform  to  all 
rules  and  regulations  now  made 
or  hereafter  to  be  made."  De- 
fendants requested  Mrs.  Mor- 
rison to  change  the  costume 
which  she  was  then  using  and  in 
place  thereof  wear  a  "military 
costume."  That  was  a  costume 
in  "tights"  without  skirts.  Held 
that  it  was  error  to  exclude  con- 
versations had  at  the  time  Mrs. 
Morrison  was  requested  to  change 
costumes,  for  the  contract  con- 
templated future  discussions  be- 


EXPOSURE    TO   OBSCENITY,    RIDICULE,    ETC. 


137 


She  is  bound  al)solutely  by  her  contract,  and  the  only 
way  in  which  an  actress  can  avoid  the  predicament  of 
having  to  wear  a  costume  repugnant  to  her  sense  of 
modesty,  is  by  contracting  with  the  manager.  Unless 
she  so  contracts  she  is  subject  to  discharge  for  which  she 
cannot  recover. '°- 


tween  the  parties  upon  the  sub- 
ject of  costumes  and  that  such 
conversation  would  aid  the  jury 
in  decidinn  wliether  tlie  reguhi- 
tion  of  defendants  was  a  reason- 
able one. 

See  alio  iti  this  connection: 
Baumcistcr  v.  Markham  (1897), 
101  Ky.  122;  39  S.  W.  844;  41 
S.  W.  816.  An  actress  while  on 
her  way  to  the  theatre  to  perform 
was  injured  through  negligence 
of  defendants.  Tlie  lower  court 
refused  to  charge  the  jury  as 
follows,  which  was  an  alleged 
error  of  the  court:  "The  court 
instructs  the  jury  that  if  they 
believe  from  tlie  evidence  that  a 
part  of  the  business  of  the  plain- 
tiff was  to  go  upon  the  stage  and 
exhibit  her  legs  in  such  manner  as 
is  indecent  in  fact  and  immoral 
in  its  tendencies,  then,  in  that 
event,  the  loss  of  opportunity  to 
earn  money  in  such  employment 
can  form  no  basis  for  recovering 
damages."  The  appellate  court 
sustained  the  lower  court's  refusal 
to  so  charge  and  said  in  support 


of  its  position:  "It  may  be,  as 
testified  by  appellant,  such  per- 
formance retjuires  the  arti.st  to 
'show  her  liml)s  in  silk  stock- 
ings,' but  while  it  is  tolerated  by 
law  and  patronized  openly  and 
freely  by  the  public,  the  court 
cannot  arbitrarily  outlaw  those 
who  earn  a  livelihood  in  that 
way." 

^"^  Rafalo  V.  Eddstein  el  al. 
(1913),  SO  Misc.  (N.  Y.)  153;  140 
N.  Y.  Supp.  107G.  A  part  was 
a.ssigned  to  one  of  the  plaintiffs 
(the  wife)  which  she  refused  to 
play  upon  the  ground  that  such 
part  was  "artistically  unfit"  for 
her.  Defendants  w  re  entitled 
to  a.ssign  such  part  to  the  wife. 
Defendants  asked  her  to  recon- 
sider her  refusal.  The  following 
day  the  wife  telephoned  that 
she  was  willing  to  play  the  part 
but  plaintiff  refused  to  further 
employ  her.  Held  that  the  re- 
{juest  on  the  part  of  defendants 
to  reconsider  her  refusal  did  not 
necessarily  constitute  a  waiver 
of  the  breach  of  the  contract,  the 


138 


THE    LAW   OF   MOTION   PICTURES 


Nor  may  she  object  to  portraying  a  lewd  or  immodest 
character,  unless  she  has  reserved  that  privilege  to  herself 
by  contract.  The  theatre  is  an  institution  founded  for 
"the  imitation  of  virtue  and  the  exposure  of  vice  and 
folly."  Of  necessity  somebody  must  play  the  villain,  the 
adventuress,  the  harlot,  just  as  one  plays  the  hero  and 
the  innocent  heroine.  And  the  producer  has  the  right  to 
call  upon  any  member  of  his  troupe  to  play  the  dis- 
agreeable, as  well  as  the  desirable  parts,  subject  to  cer- 
tain limitations  which  will  be  hereafter  discussed. 

The  producer  may  not  demand  that  the  actor  travel 
an  unreasonable  distance  to  perform,  ^"^  or  endanger  his 
life  and  hmb,^°^  unless  he  has  specifically  contracted  so 


court  holding  that  such  question 
should  have  been  submitted  to 
the  jury. 

■"'  Gath  V.  Inter  stale  Amusement 
Co.  (1912),  170  111.  App.  614. 
Plaintiffs  were  engaged  to  per- 
form a  vaudeville  act  for  five 
weeks  in  Montgomery,  Ala.,  Little 
Rock,  Ark.,  Fort  Worth,  Dallas 
and  Houston,  Texas,  and  "ad- 
jacent" towns.  Defendants,  seek- 
ing a  pretext  to  break  the  con- 
tract, wired  plaintiffs  to  appear 
in  Beaumont  which  is  300  miles 
away.  Held  that  the  word  "ad- 
jacent" did  no(  convey  any 
.such  meaning  and  tiiat  this  was 
an  unreasonable  interpretation 
of  the  contract. 

">*IIanlin  v.  Wallers  (1893),  3 


Col.  App.  519;  34  Pac.  686.  De- 
fendant, manager  of  a  theatre  in 
Pueblo,  was  also  an  innkeeper 
and  boarding-house  keeper.  He 
engaged  plaintiff  to  work  in  his 
theatre  and  boarded  and  lodged 
her  at  his  house.  Becoming 
terrified  at  the  actions  of  de- 
fendant's wife,  plaintiff  was  com- 
pelled to  leave. 

Defendant  kept  her  trunk  and 
valise  and  plaintiff  was  forced  to 
replevy  them. 

Held  that  defendant  having 
been  the  cause  of  plaintiff's  tlc- 
parture,  the  fault  was  with  him, 
and  he  would  not  be  permitted 
to  say  that  her  indebtedness  to 
him  of  her  board  was  not  paid. 
The  replevy  was  sustained. 


EXrOSl'UE    TO    OHSCKMTV,    lUDKTLK,    KTC. 


\:vj 


to  do  and  has  accepted  his  emplojmient  with  that  under- 
standing.'"^ 

The  producer  may  not  demand  that  the  actor  or  actress 
do  an  act  whicli  is  obscene  or  lowd,  for  that  is  clearly 
against  public  ])()licy  and  is  ground  for  rescission  of  the 
contract.  But  it  would  be  for  the  jury  to  say  what  con- 
stituted such  conduct. '"" 

Nor  may  the  ])r()ducer  insist  that  the  actor  play  a  i)art 
inferior  to  that  for  which  he  was  hired. 

Where  the  plaintiff  was  employed  as  a  "premier  second- 
danseuse,"  it  was  held  that  she  was  justified  in  refusing 
to  dance  in  parlor  dress  with  figurantes  of  the  theatre.'"' 
So,  too,  where  a  dancer  was  engaged  as  a  "i)reniiere  dan- 
seuse  etoile"  and  had  been  asked  to  dance  an  inferior 
part  by  the  stage  management.'"^  And  a  bass  or  baritone 
in  a  church  choir  could  not  be  compelled  to  sing  an  in- 
ferior part."^    In  one  case,  where  a  "star"  actress  was 


O'Connor  v..  Armour  Packing 
Co.  (1!)08),  158  Fed.  (C.  C.  A.) 
241.  (Jeiierally  on  tlie  que.stion 
of  expo.siiig  the  servant  to  dis- 
ease. 

'»»Zi//7z  V.  Tooveij  (1890),  9 
N.  Y.  Supp.  439.  The  phiintiffs 
(husl)and  and  wife)  were  engaged 
to  perforin  at  defendant's  place 
of  anuisenient,  the  luisband  to 
do  the  "fire 'act"  and  the  wife, 
among  other  things,  to  walk  on 
broken  glass.  The  action  was 
i)n)iight  for  wrongful  discharge, 
defendant  claiming  tliat  the  wife 
failed  to  walk  and  tlance  on  gla.ss 


in  the  manner  provided  in  the 
contract,  lldd  that  the  wife 
substantially  performed  the  con- 
tract by  walking  and  jumping 
on  the  glass  tiiough  she  did  not 
dance  on  it. 

"*y?«/flZo  V.  Edchtein  (1913), 
SO  Misc.  (X.  Y.)  153;  140  N.  Y. 
Supp.  1076;  Morrison  v.  Ilurlig 
(1910),  198  X.  Y.  3.j2;  91  X.  K. 
842. 

^°' Baron  v.  Placide  (1852),  7 
La.  Ann.  229. 

"^^''  lioscric  v.  Kiralfii,  12  Phila. 
(Pa.)  209. 

' "»  Warner  v.    The   Rector  and 


140 


THE   LAW  OF  MOTION   PICTURES 


asked  to  play  in  a  part  assigned  to  her  by  the  theatre 
manager,  it  was  held  that  the  evidence  showed  a  custom 
or  usage  in  the  theatrical  profession  by  which  the  "star" 
had  the  pri\^lege  of  selection  of  such  parts  as  she  might 
shine  into  good  advantage. "° 

In  the  case  of  Violette  v.  Rice,^^^  the  plaintiff,  an  actress, 
contracted  "to  render  services  at  any  theatres."  It  was 
held  that  evidence  tending  to  show  that  the  word  ''serv- 
referred  to  particular  kinds  of  services  only,  was 


ices 


Trustees,  etc.  (1882),  1  City  Court 
(N.  Y.),  419.  Plaintiff  was  em- 
ployed to  sing  a  bass  or  baritone 
part  in  a  choir  of  the  defendant's 
church.  The  defendant  directed 
plaintiff  to  take  a  subordinate 
part  which  he  refused.  Held 
plaintiff  could  recover  for  breach 
of  the  contract. 

Briscoe  v.  Lilt  (189G),  19  Misc. 
(N.  Y.)  5;  42  N.  Y.  Supp.  90S. 
"The  employe  is  only  required 
to  engage  in  service  of  a  character 
and  grade  equal  to  that  from 
which  he  was  discharged,  and 
nothing  inferior  in  rank  or  de- 
gree." 

'^^  Kelly  V.  Caldwell  (1832),  4 
La.  38. 

For  miscellaneous  non-theatrical 
cases  see:  Wolf  Cigar  Stores  x. 
Kramer  (1908),  109  S.  W.  (Tex.) 
990;  Development  Co.  v.  King 
(190H),  101  Fed.  (C.  C.  A.)  91; 
Davis  V.  Dodge  (1908),  12G  A.  D. 


(N.  Y.)  469;  110  N.  Y.  Supp.  787; 
Marx  V.  Miller  (1901),  134  Ala. 
347;  32  So.  765;  The  Sarah,  1 
Stuart  Adm.  Rep.  (Quebec)  87; 
Drummond  v.  Atty.  Gen'l  (Eng.), 
2  H.  L.  Cas.  837. 

^^^  Violette  v.  Rice  (1899),  173 
Mass.  82;  53  N.  E.  144.  An  em- 
ployment contract  provided  that 
plaintiff  was  "to  render  services 
at  any  theatres"  and  "to  conform 
to  and  abide  by  all  the  rules  and 
regulations  adopted"  by  defend- 
ant "for  the  government  of  said 
companies."  On  the  back  of  the 
contract  were  the  rules  of  the 
company,  one  of  them  reading: 
"No  person  shall  .  .  .  refuse  a 
part  allotted  to  him  or  her  ])y  the 
manager"  on  certain  penalties 
including  the  right  of  discharge. 
Held  that  evidence  that  the  word 
".service"  referred  to  particular 
services  was  inadmissible. 


EXPOSURE   TO    OBSCENITY,    RIDICULE,    ETC. 


141 


inadmissible,  as  varying  the  terms  of  the  \\Titten  contract. 
This  rule  seems  to  be  in  harmony  with  the  language  of 
the  dissenting  opinion  of  Mr.  Justice  Bijur  in  Rafalo  v. 
Edehtcin.'^^-  But  in  another  case,  involving  the  dis- 
charge of  a  traveUng  salesman,  parol  evidence  was  held 
admissible  to  ascertain  the  duties  of  the  plaintiff.''^  And 
in  another  case  it  was  held  that  it  was  for  the  jury  to  say 
what  the  duties  of  a  stage  manager  were.^^'* 

On  the  other  hand,  an  actress  who  is  engaged  for  an 
inferior  part  or  in  the  capacity  of  an  understudy,  may 
not  demand  that  the  producer  permit  her  to  perform 
when  the  principal  becomes  ill."^ 


''^Rafalo  V.  Edelstein  (1913), 
80  Misc.  (N.  Y.)  153;  140  X.  Y. 
Supp.  107G. 

"'  Broicn  v.  Baldwin  &  Gleason 
(1S91),  13  X.  Y.  Supp.  893. 
Phiiiitill  alleged  a  wTongful  dis- 
charge. He  was  hired  as  a  travel- 
ing salesman,  and  at  the  trial 
defendants  offered  testimony  to 
show  that  it  was  a  custom  in  the 
trade  for  a  salesman  to  take  out 
a  line  of  samples.  Said  Judge 
Pryer:  "Doubtless  the  learned 
trial  judge  rejected  the  evidence 
on  the  ground  that  a  written 
contract  cannot  he  added  to  or 
in  any  way  altered  by  oral  testi- 
mony. By  the  contract  the  re- 
spondent was  '  to  serve  tvs  travel- 
ing salesman;'  but  what  were 
liis  duties  as  such  is  not  defined, 
nor  does  the  law  determine  them. 


Parol  evidence  of  trade  usage 
ascertaining  those  duties  was 
therefore  in  no  sense  contradic- 
tory of  or  inconsistent  with  the 
terms  of  the  written  instrument, 
but  tended  only  to  show  the  full 
meaning  and  effect  of  the  words 
'  traveling  salesman.'" 

"^A'as/t  V.  Krieling  (1899),  56 
Pac.  2G0;  aff'd  123  Cal.  xviii. 

^^'-Neicman  v.  Gatli  (1907),  24 
(Eng.)  T.  L.  R.  18.  Plaintiff,  an 
actress,  was  engaged  for  the  run 
of  a  play  to  act  as  understudy  to 
the  principal  character.  Plaintiff 
received  a  weekly  salar3\  She 
agreed  not  to  appear  at  any  other 
place  of  amu.sement  during  the 
term  of  the  contract  without 
defendant's  consent.  During  the 
run  of  the  play  the  principal 
actress  left  the  show.      Plaintiff 


142 


THE    LAW   OF   MOTION   PICTURES 


On  the  refusal  of  the  actor  to  play  the  part  assigned  to 
him,  the  producer  must  give  actual  notice  of  discharge,  ^^® 
but  if  he  fails  to  do  so  and  continues  him  in  his  employ, 
it  becomes  a  question  of  fact  for  the  jury  whether  there 
was  condonation.  ^^^ 


Section  46. — ^Renewal  of  the  contract — modification. 

Where  nothing  is  said  by  the  parties,  and  the  actor 
under  contract  with  the  producer,  continues  in  the  em- 
ployment, the  law  will  imply  a  renewal  of  the  original 
contract  for  an  equal  length  of  time  up  to  one  year,  and 
upon  the  same  terms.  ^^^ 


brought  action  for  breach  of  con- 
tract for  failure  of  defendant  to 
permit  her  to  act  in  the  principal 
part.  Held  that  under  the  con- 
tract no  right  was  conferred  upon 
plaintiff  to  play  the  part;  that 
the  contract  merely  imposed  the 
obligation  on  the  part  of  plaintiff 
to  play  if  called  upon  so  to  do  by 
defendant. 

^^^Slanding  v.  Brady  (1913), 
157  A.  D.  (N.  Y.)  657;  142  N.  Y. 
Supp.  656.  Where  the  contract 
provided  that  plaintiff  was  to  play 
such  parts  as  were  assigned  to 
him  and  further  that  defendant 
could  annul  the  contract  during 
rehear.sals.  Held  that  \or(lict  for 
plaintiff  .should  be  reinstated 
when  although  there  was  evi- 
dence that  plaintiff  refused  to 
play  part  assigned   to  him,  yet 


defendant  failed  to  give  notice 
of  discharge  to  him. 

^"  Rafalo  V.  Eddstein  (1913), 
80  Misc.  (X.  Y.)  153;  140  N.  Y. 
Supp.  1076. 

^^^  Lorenz  v.  Bartuschck,  City 
Court  of  the  City  of  New  York, 
unreported,  judgment  roll  filed 
May  18,  1916.  Plaintiff  was  a 
ballet-mistress  emploj'ed  by  de- 
fendant in  Berlin.  Defendant 
contracted  with  Mr.  Dillingham 
to  produce  his  ice-ballet  at  the 
New  York  Hipprodrome,  and 
plaintiff  was  sent  over  with  the 
ballet  in  July,  1915,  and  after  a 
rehearsal  period  of  six  weeks 
entered  upon  her  duties.  In 
November,  1915,  defendant  and 
Dillingham  renewed  their  con- 
tract and  extended  the  .same  for 
four   months,   with   renewal   op- 


RENEWAL   OF   THE    CONTRACT — MODIFICATION        143 

Where  the  orij^iiial  contract  was  fur  a  graduated  scale 
of  compensation  for  several  years,  the  contract  will  be 


tions  which  DilhuKhiun  exorcised 
down  to  July.  The  pluiiitilT 
contiiiuctl  to  i)orforin  her  duties, 
but  after  Jiuumry  Hi,  1916>  de- 
fendant refused  to  pay  her, 
clainiinf!;  that  slie  was  no  longer 
in  his  employ,  but  in  the  employ 
of  Dillingham,  as  no  express 
contract  of  renewal  had  been 
made  with  her  by  the  defendant. 

PlaintitT  went  to  the  jury  and 
received  a  verdict  for  .?  1,000,  the 
full  amount  sued  for,  which  was 
sustained  by  the  Appellate  Term 
without  opinion. 

(1)  Plaintiff  contended  that 
where  the  original  term  of  em- 
ployment had  expired  and  she  was 
pormitt(>d  to  continue  her  duties, 
the  contract  wa.s  renewed  by 
oix?ration  of  law  upon  the  same 
terms.  [Labatt  on  Master  &  Serv- 
ant, 2d  Ed.,  Section  230;  Adams 
V.  Fitzpalnck,  125  N.  Y.  121; 
Wood  V.  A////CT,  78  N.  Y.  iMisc 
377;  Douglas  v.  Merchants'  Ins. 
Co.,  118  N.  Y.  484;  Huntington  v. 
Claflin,  38  N.  Y.  182;  Vail  v. 
Jirscij  Co.,  .T2  Barb.  (N.  Y.)  .')()!; 
Lichtenstein  v.  Fisfwr,  87  Hun 
(N.  Y.),  397.)  And  the  compensa- 
tion was  presumed  to  be  the 
same.      (Labatt,    Section    232.) 


Besides  which  there  wa.s  evidence 
to  indicate  that  the  contract  had 
been  extended  by  parol.  {Hudson 
lildg.  Co.  V.  Compagnie  Gen. 
Transatlantique,  169  N.  Y.  App. 
Div.  600;  Homer  v.  Guardian 
Mul.  Life  Ins.  Co.,  67  N.  Y.  478.) 

(2)  The  contract  also  provided 
that  "In  ca.se  of  all  disputes  ari.s- 
ing  under  this  contract  both  par- 
tics  shall  submit  to  the  jurisdic- 
tion of  the  Amstgericht,  Berlin 
Mitte  or  Landoricht  I  in  Ber- 
lin. ..."  Plaintiff's  contention 
was  that  this  clause  did  not  oust 
the  American  courts  of  jurisdic- 
tion. {M cache m  v.  Jamestown 
R.  R.  Co.,  211  N.  Y.  346;  Engel  v. 
Shuhert,  166  X.  Y.  App.  Div.  394.) 

(3)  Evidence  of  the  contract 
between  defendant  and  Dilling- 
ham by  the  original  instrument 
was  properly  admissible.  {Miller 
V.  Laarcnce,  13  X.  Y.  Misc.  130.) 

Montague  v.  Flockton  (Eng.) 
(187.3),  L.  R.  16  Eq.  189.  A  con- 
tract which  renews  a  contract 
for  services  for  another  season 
is  binding  for  the  same  length 
JUS  the  iirst  contract. 

De  Gcllcrt  v.  Poole  (1888),  2 
N.  Y.  Supp.  6.-)l. 

For    miscellaneous    cases   see: 


114 


THE    LAW   OF   MOTION   PICTURES 


deemed  renewed  for  one  year  upon  the  same  scale  of 
compensation  provided  for  in  the  last  year  of  the  original 
contract.  ^^^ 

It  often  happens  that  after  an  actor  finishes  an  en- 
gagement for  a  long  term  he  is  asked  to  continue  it  for  a 
short  period,  either  to  complete  the  run  of  a  play  or  to 
finish  a  picture.  In  such  case  a  breach  by  the  manage- 
ment will  entitle  the  actor  to  sue  upon  the  additional 
period  as  if  the  same  were  a  part  of  the  period  embraced 
in  the  original  contract. ^-° 

Whether  the  written  contract  could  be  modified  by  a 
verbal  agreement,  is  a  question  for  the  jury.^-^ 

ment.  Held  that  the  salary  for 
the  ensuing  season  if  the  option 
was  exercised  would  be  that  pay- 
able for  the  third  year  and  that 
the  contract  was  not  void  for 
uncertainty. 

120  Wheeler    v.    Woods    (1909) , 


Morris  v.  Briggs  (1915),  179 
S.  W.  (Mo.)  783;  Curtis  &  Dodd  v. 
Struthers  (1915),  154  N.  W.  (la.) 
872;  Dunlon  v.  Derby  Desk  Co. 
(1904),  186  Mass.  35;  71  N.  E. 
91;  Slate  Board  of  Agriculture  v. 
Meyers  (1904),  20  Col.  App.  139; 
77  Pac.  372;  Home  Fire  Ins.  Co. 
V.  Barber  (1903),  67  Nebr.  644; 
93  N.  W.  1024. 

119  Wade  V.  Rob't  Arthur  Thea- 
tres Co.  (Eng.)  (1907),  24  T.  L.  R. 
77.  Defendants  engaged  plain- 
tiff to  act  in  the  principal  part  of 
a  pantomime  at  a  salary  of  £130 
per  week  for  the  first  year,  £140 
for  the  second  year  and  £150 
for  the  tliird  year,  with  the  option 
of  retaining  the  services  of  plain- 
tiff for  the  next  pantomime  season 
upon  the  same  terms  and  condi- 
tions as  set  forth  in  the  agree- 


120  N.  Y.  Supp.  80.  Where  plain- 
tiff, an  actor,  had  fully  performed 
under  a  written  contract  and  had 
been  asked  to  perform  for  an- 
other two  weeks  in  Chicago,  and 
the  show  was  disbanded  during 
the  second  week,  it  was  held  that 
he  could  recover — not  upon  a 
quantum  meruit, — but  upon  the 
extra  two  weeks'  engagement. 
See  also:  Kcane  v.  Liebler  (1907), 
107  N.  Y.  Supp.  102. 

'"  Rothcnbcrg  v.  Packard 
(1910),  97  Miss.  428;  52  So.  458. 
Plaintiff,  manager  of  a  produc- 


HOW    MANY   CAUSES    OF   ACTION    FOU   UHI:A(  H         M.' 


And  a  contract  made  by  the  actor  with  the  dinctnr 
general  of  a  travehng  show,  may  be  renewed  l)y  that 
same  director  general  so  as  to  bmd  the  company. '-- 

Section  47.     How  many  causes  of  action  for  breach. 

As  a  general  rule  the  actor  has  but  one  cauSc  of  action 
for  damages  for  a  breach  of  the  contract  by  WTongful  dis- 
charge.'-'' 

But  it  is  necessary  to  distinguish  between  a  partial 
breach  and  a  total  breach,  ^^^lere  the  contract  is  sever- 
able and  of  such  a  nature  that  it  may  be  breached  in 
part  and  performed  in  part,  judgment  recovered  in  an 
action  for  the  partial  breach  is  not  a  bar  to  a  subsequent 
action  for  the  total  breach. ^-^ 


tion,  contracted  with  defendant 
to  give  performances  at  defend- 
ant's theatre,  defendant  agreeing 
to  pay  plaintiff  70%  of  gross 
receipts.  Just  before  the  opening 
of  first  performance  phiintiff's 
actors  and  actresses  refused  to 
proceed  with  their  acting  unless 
they  were  paid  salaries  due  them 
for  previous  performances.  An 
agreement  wa.s  made  between 
plaintiff's  traveling  agent  and 
defendant  whereby  defendant 
agreed  to  pay  artists  the  70%  to 
bo  applied  on  account  of  salaries 
due  them,  which  defendant  did. 
Plaintiff  sued  for  70%  of  the 
gross  receipts.  Held  that  it  was 
a  (juostion  for  the  jury  whether 
defendant,  in  view  of  the  emer- 


gency, could  make  a  verbal  agree- 
ment with  plaintiff's  agent  not- 
withstanding his  original  written 
contract  witli  plaintiff. 

liobcij  V.  Arnold  (Kng.)  (1898), 
14  T.  L.  R.  220.  The  meaning 
of  the  word  ''re-engagement"  is 
for  the  jury.  See  also:  Arnold  v. 
Stratton  (Eng.)  (1898),  14  T.  L.  R. 
537. 

^•'^  Eddy  V.  American  Amuse- 
ment Co.  (1913),  132  Pac.  (Cal.) 
83. 

'"  Evcrson  v.  Powers  (1882),  89 
N.  Y.  527;  Parry  v.  American 
Opera  Co.  (1887),  19  Abb.  X. 
Cas.  (N.  Y.)  269. 

"*  Livingston  v,  Klaw  el  ano. 
(1910),  1.37  A.  D.  (X.  Y.)  G3'>: 
122  N.  Y.  Supp.  204.     Plaintiff 


146 


THE    LAW   OF   MOTION   PICTURES 


Where  the  employer  has  given  notice  of  his  intention 
to  breach  the  contract,  the  employe  who  then  treats  the 
contract  as  breached,  cannot  keep  it  ahve,  but  must  sue 
on  the  breach. ^-^ 

But  there  arises  no  cause  of  action,  on  a  wrongful  dis- 
charge, which  is  based  upon  the  theory  that  such  dis- 
charge was  malicious  and  oppressive.  The  law  will  not 
give  redress  for  such  injury,  but  the  action  must  be  purely 
one  for  breach  of  contract  and  nothing  more.^-^ 

Section  48. — Actor's  remedy  for  breach. 

Where  the  actor  is  ready,  able  and  willing  to  continue 
in  his  emplojnnent  and  the  producer  does  not  permit  him 


was  employed  for  a  term  of 
twenty  consecutive  weeks,  serv- 
ices to    coimnence    December  2, 

1907,  at  a  weekly  salary.  De- 
fendants failed  to  provide  em- 
plo3''ment  for  weeks  commencing 
January  6,  1908,  and  January  20, 

1908.  They  did  provide  him 
with  employment  for  weeks  cov- 
ering January  13,  1908,  and 
January  27,  1908,  respectively. 
Plaintiff  sued  for  salaries  due  for 
weeks  of  January  6  and  20,  and 
recovered  judgment.  Plaintiff 
now  sues  for  total  breach.  Judg- 
ment secured  l)ccause  of  partial 
breach  is  set  up  as  bar  to  the  ac- 
tion. Held  that  where  there  had 
been  a  partial  breach,  a  recovery 
for  sucii  breach  did  not  bar  an 


action  for  a  total  breach  subse- 
quently occurring. 

1"  Greenwall  Tlieat.  Circ.  v, 
Markowitz  (1904),  97  Tex.  479; 
79  S.  W.  1069. 

12S  Weslwater  et  ano.  v.  Rector 
et  al.  (1903),  140  Cal.  339;  73 
Pac.  1055.  Complaint  alleged 
that  the  dismissal  of  the  plaintiff, 
a  vocal  artist,  was  malicious  and 
oppressive,  and  in  consequence 
thereof  plaintiff  had  been  hu- 
miliated, suffered  great  mental 
agony,  and  had  been  sick  in  mind 
and  body.  Held  that  complaint 
was  demurrable  upon  the  ground 
that  damage  to  health,  reputa- 
tion or  feeUngs  arising  out  of  dis- 
missal was  too  remote  and  un- 
certain. 


ACTOlt  S    REMEDY    lOK    UUEACU 


147 


to  do  so,  or  refuses  to  pay  liiin  for  his  serviecs,  there  is  a 
breach  of  the  contract  by  the  ])roducer,  and  a  cause  of 
action  arises  in  favor  of  the  actor. 

The  latter  may  then  sue  for  the  entire  amount  due  him 
for  the  unexpired  term  of  the  contract;  and  upon  the 
trial  the  jury  may  give  him  a  verdict  up  to  such  auKJunt. 
Nor  is  the  jury  limited  by  the  amount  due  at  the  time  of 
the  trial.'-" 

After  the  occurrence  of  the  breach  it  is  not  necessary 
for  the  actor  to  tender  his  services  or  be  prepared  at  all 
times  ready  to  perform  for  the  producer.  ^-^ 

As  against  the  plaintilT's  recover}'  the  defendant  may 
set  up  the  fact  that  plaintiff  has  earned  other  money  else- 
where since  the  discharge,  and  the  jury  must  be  instructed 
to  deduct  such  earnings  from  the  damages  claimed;  '^  and 
they  may  also  speculate  on  the  amount  of  earnings  of  the 
plaintiff  which  he  may  secure  before  the  exph-ation  period 
of  the  contract.  Indeed,  the  plaintifT  is  in  duty  bound 
to  mitigate  the  damages,  and  to  use  all  reasonable  dili- 
gence in  seeking  other  cmploj'ment,''"'  although  where  his 

'"Howard  v.  Dali/  (1S75),  61  '^^  Ba.sse«  v.  French  (1895),  10 

N.  Y.  302;  Sutherland  v.   Wyer      Misc.    (X.    Y.)    672;   31    X.    Y. 


(1S77),  67  iMc.  61;  Dugan  v.  /!«- 
derson  (1872),  36  IMd.  567.  See 
also  concurring  opinion  of  Gay- 
nor,  J.,  in  Davis  v.  Dodge  (lOOS), 
126  A.  I).  (X.  Y.)  169;  110  X.  Y. 
Supp.  7S7. 

See  also:  Editorial  in  the  Xow 
York  Law  Journal  (jf  Septeinhor 
14,  1917. 

*^»  Howard  v.  Dalg  (IST.')),  61 
X.  Y.  362. 


Supp.  667.  Defendant  w:is  per- 
mitted, after  default  in  plead- 
ing, to  come  in  upon  a.sse.ssment 
of  damages  and  to  show  that 
during  the  contract  period  plain- 
tiffs received  other  earnings  which 
were  to  be  allowed  in  mitigation 
of  damages.  See  also:  Stdherland 
V.  Wgcr  (1877),  67  Me.  64. 

"oPo/^  V.  Daly  (1S73),  4  D.aly 
(X.  Y.),  411.     PlaintifT  was  dis- 


148  THE    LAW   OF   MOTION   PICTURES 

absence  does  not  prevent  the  defendant  from  reducing 
the  damage  he  may  recover  for  the  full  amount. ^^^ 

However,  if  the  defendant  wishes  to  avail  himself  of 
this  defense,  he  must  plead  it  as  a  partial  defense  in  miti- 
gation of  damages,  and  the  burden  of  estabhshing  it  is 
upon  him.^^^ 

Where  the  contract  period  has  expired  before  the  time 
of  trial,  the  actor  is  entitled  to  recover  full  compensation 
up  to  the  time  of  the  expiration  of  the  contract  period, 
less  other  earnings."^ 

Where  the  earnings  elsewhere  are  greater  than  the  com- 
pensation agreed  to  be  paid  under  the  contract  sued  on, 
the  defendant  is  entitled  by  way  of  mitigation  of  damages, 
only  to  a  proportionate  share  of  the  earnings  calculated 
upon  the  work  done  under  each  contract.  ^^^ 

charged  before  expiration  of  bis  ^^^  Dearing  v.  Pearson  (1894), 

contract.     He  tendered  his  serv-  8  Misc.  (N.  Y.)  269;  28  N.  Y. 

ices  and    upon    defendant's  re-  Supp.  715. 

fusal   to   furnish   him   with   em-  ^^^  Howard  v.  Daly  (1S75),  Gl 

ployment  left  for  the  south  where  N.  Y.  3G2. 

he  remained  during  the  balance          ^^^  Everson  v.  Powers  {18S2),  89 

of  the  contract  period.     It  was  N.  Y.  527. 

proved  by  defendant  that  plain-  ^^*  Evesson  v.  Ziegfcld  (1903), 
tiff  made  no  effort  to  find  other  22  Pa.  Super.  79.  Under  the 
employment,  but  on  the  contrary  contract  plaiutifT  was  to  receive 
"went  a  fishing."  Held  that  $100  per  week;  performances 
plaintiff  was  obligated  to  use  contemplated  to  be  seven  or 
"ordinary  but  active  diligence"  eight  per  week.  After  discharge 
in  securing  new  employment  to  ])l!unti(T  secured  other  employ- 
mitigate  damages.  See  also:  mont  at  $175  per  week,  number 
Howard  v.  Daly  (1875),  61  N.  Y.  of  performances  to  be  given  per 
362;  SiUherlaiid  v.  Wycr  (1877),  week  being  fourteen.  Held  that 
67  Me.  64.  defendant   was  only   entitled  to 


PROFITS    AS    A    BASIS    FOR    DAMAGES 


140 


Section  49.— Profits  as  a  basis  for  damages. 

The  breach  of  a  contnict  to  })Uiy  at  a  th(;atrc  often  in- 
volves tlie  difTieulty  of  laying  a  basis  on  which  damages 
may  be  predicated.  Generally  speaking,  the  prospective 
profits  of  a  performance  are  vague  and  speculative,  and 
not  susceptible  of  such  computation  as  to  admit  of  proof. '^^ 


8/14  of  S175  per  week  in  mitiga- 
tion of  chunti^cs.  Held  further 
tliiit  plaintid  might  sliow  expendi- 
tures for  costumes,  etc.,  during 
period  of  employment  by  de- 
fendant not  as  an  item  of  dam- 
age but  for  the  purpose  of  show- 
ing performance  on  lier  part. 
Held  further  that  a  receipt  in  full 
for  money  actually  earned  did 
not  release  defendant  from  any 
and  all  claims  for  breach  of  con- 
tract as  the  money  paid  to  plain- 
tiff upon  signing  the  release  was 
actually  due  her,  hence  no  con- 
sideration for  absolute  release. 

Frohman  v.  Ma>^on  (101.5),  89 
Misc.  (N.  Y.)  380;  VA  N.  Y.  Supp. 
938.  Defendant,  counterclaim- 
ing,  sought  to  recover  for  a  breach 
of  contract  of  employment.  He 
had  been  employed  by  jjlaintitT 
at  a  salary  of  S700  a  week  and 
7%  of  the  profits  over  S7,0()() 
weekly,  but  after  the  failure  of 
the  production,  he  contracted 
with  another  manager  at  S70()  a 
week  and  a  bonus  of  SI, 700.    His 


income  for  the  sea.son  was  greater 
than  it  would  have  been  had  he 
continued  to  play  for  the  plain- 
tiff, although  in  fact  he  was  em- 
ployed for  18  weeks  instead  of 
20  weeks.  Held  that  he  was  not 
actually  damaged  and  could  not 
recover. 

'"  Bernstein  v.  Meech  el  al. 
(1891),  130  N.  Y.  354;  29  X.  E. 
255.  A  contract  was  made 
whereby  plaintiff  was  to  give  a 
specified  number  of  performances 
at  defendant's  hall  and  receive 
50%  of  the  gross  receipts  from 
such  performances.  Defendant 
refusal  to  jx>rmit  plaintilT  to  per- 
form. Held  that  although  the 
value  of  the  contract  to  plaintiff 
W!is  in  the  profits,  such  profit.s 
were  not  susceptible  of  proof  and 
could  not  be  recovered. 

Culling  V.  Miner  (1898),  30 
A.  D.  (N.  Y.)  457;  52  N.  Y.  Supp. 
2SS.  Plaintiff  agreed  to  play  her 
company  at  defendant's  theatre 
and  to  receive  a  certain  percent- 
age of  the  receipts.     The  jurj' 


150 


THE    LAW   OF   MOTION    PICTURES 


awarded  her  a  substantial  verdict 
but  the  Appellate  Division  re- 
versed the  judgment: 

"There  was  no  evidence  in  the 
case  to  warrant  this  finding. 
It  was  necessarily  pure  guess 
work.  ...  If  the  performance 
had  been  permitted  to  proceed, 
and  the  play  had  been  a  success 
as  evidenced  by  equally  large 
audiences  on  subsequent  occa- 
sions, there  would  have  been 
some  reasonable  basis  for  the 
finding  as  to  the  prospective 
profits  for  the  rest  of  the  week. 
But  here  there  was  no  basis  at 
all.  There  was  simply  a  first- 
night  audience  attracted  by  the 
production  of  a  new  play." 

See  also:  New  York  Academy 
of  Music  V.  Hacketl  (1858),  2 
Hilt.  (N.  Y.)  217;  Wakeman  v. 
Wheeler  (1886),  101  N.  Y.  205; 
4  X.  E.  264;  Ellsler  v.  Brooks 
(1886),  54  Super.  Ct.  (N.  Y.)  73; 
Levison  v.  Oes  (1917),  98  Misc. 
(N.  Y.),260;  Toddv.Kcene  (1896), 
167  Ma.ss.  157;  45  N.  E.  81. 

Moss  V.  Tompkins  (1893),  69 
Ilun  (X.  Y.),  288;  23  X.  Y.  Supp. 
623;  aff'd  in  144  X.  Y.  6.59;  30 
X.  E.  858.  A  contract nvas  made 
between  the  parties  whereby 
plaintifT,  the  lessee  of  a  theatre, 
agreed  to  furnish  dfifendant,  the 
manager  of  a  theatrical  produc- 
tion, theatre  and  equipment  for  a 


specified  period,  the  gross  re- 
ceipts to  be  shared  between  the 
parties.  Before  the  date  fixed 
for  the  giving  of  the  first  perform- 
ance, defendant  notified  plaintiff 
that  he  would  not  produce  the 
play  at  the  plaintiff's  theatre. 
Plaintiff  was  not  permitted  to 
show  previous  receipts  of  his 
theatre  or  the  popularity  and 
success  of  the  production  in  the 
places  where  it  had  already  been 
produced  and  that  such  receipts 
would  have  been  greater  during 
the  contract  period  than  those 
actually  taken  in  by  plaintiff. 

The  court  makes  this  signifi- 
cant statement : 

"The  defendant's  dramatic 
company  was  not  shown  to  in- 
clude artists  of  such  exceptional 
and  well-known  talent  as  to 
guarantee,  apart  from  the  play, 
audiences  of  reasonably  certain 
numbers.  Xor  was  any  special 
attraction  of  the  latter  kind  con- 
templated by  the  contract." 

But  see  in  this  connection: 
Savery  v.  Ingcrsoll  (1887),  46 
Hun  (X.  Y.),176. 

On  Ihe  construction  of  the  pay' 
ment  clause  see:  Ming  v.  Pratt 
(1899),  22  Mont.  262;  56  Pac. 
279.  Plaintiff  owned  an  opera 
house;  defendant  was  the  pro- 
prietor of  an  opera  coini)any. 
The  parties  contracted  for  a  per- 


I'ROFFTS    AS    A     HASIS    lOIi    UAMAGKS 


Tlio  plaintifT,  however,  will  h(!  pcrniitte(l  to  recover  the 
actual  losses  sustained  by  him.''""' 


formance,  and  the  court  in  pass- 
ing upon  the  meaning  of  the  pay- 
ment clause  said: 

"The  contract  expressly  pro- 
vides that  dc'fciulant  shall  have 
not  less  tlian  SboO  and  85  per  cent 
of  all  monies  received  from  the 
sale  of  scats.  The  language  is 
clear,  unambiguous  and  free  from 
any  uncertainty;  its  obvious 
meaning  is  that  defendant  was 
to  receive  S850,  and  also  85% 
of  the  gross  receipts." 

^^^  American  Hungarian  Pub. 
Co.  V.  Miles  Bros.  (1910),  68 
Misc.  (X.  Y.)  334;  123  N.  Y. 
Supp.  879.  Defendant  agreed  to 
furnish  a  motion  picture  display 
and  suitable  apparatus  for  the 
exhibition  of  motion  pictures, 
advertisements  and  election  re- 
turns. In  an  action  for  breach 
of  the  contract  for  failure  to  fur- 
nish such  paraphernalia  it  was 
held  that  plaintiff  could  recover 
as  damage  the  cost  of  preparing 
and  advertising  the  display  and 
that  of  i)reparing  a  special  edition 
of  a  newspaper  to  have  been  dis- 
tributed to  the  crowd  during  the 
exliibition. 

PapiMs  V.  Miles  (1907),  101 
N.  Y.  Supp.  309.  Action  for 
breach    of    contract    because   of 


defendant's  failure  to  furnish 
apparatus  for  the  giving  (jf  a 
motion  picture  exhibition.  Plain- 
tifT purcha-sed  films  to  be  ox- 
liibited  on  the  stated  occasion. 
Ihld  that  plaintifT's  measure  o{ 
damage  was  the  dilTerence  be- 
tween the  amount  paid  for  the 
films  by  plaintifi"  and  their  market 
value. 

Kiralfij  v.  Macaulcy,  9  Ohio 
Dec.  (Rep.)  833;  17  Weekly  Law 
Bulletin,  331.  The  manager  was 
held  to  be  entitled  to  recover  all 
expenses  which  he  had  actually 
incurred  in  preparation  for  the 
production  of  the  play. 

Savery  v.  Ingcrsoll  (1887),  46 
Hun  (N.  Y.),  176.  Defendant 
agreed  to  deliver  lecture  at  plain- 
tiff's hall  for  which  he  was  to 
receive  a  specified  sum  of  money 
but  failed  to  appear.  Held  that 
the  following  excerpt  of  the  trial 
judge's  charge  was  proper: 

"The  plaintifT  is  entitled  to 
recover  his  actual  loss,  his  actual 
expenses,  such  expense  of  time 
and  money  as  he  had  put  himself 
to,  as  he  had  made  in  good  faith 
and  were  reasonably  made  in 
view  of  the  execution  of  the 
contract." 


152  THE    LAW   OF   MOTION   PICTURES 

An  examination  of  the  above  cited  cases  establishes 
the  necessity  for  a  hquidated  damage  clause  in  a  contract 
between  the  manager  of  a  company  and  the  owner  of  a 
theatre.  Such  a  clause  is  absolutely  essential  in  the 
event  of  a  breach,  as  it  removes  all  uncertainty,  and  leaves 
only  the  question  of  the  breach  to  be  htigated. 

In  a  case  wherein  defendant  agreed  to  furnish  his  theatre 
in  Denver  for  one  week  and  plaintiff  agreed  to  provide 
his  theatrical  company  and  play  in  the  theatre  for  that 
week,  the  profits  to  be  divided,  and  each  party  to  pay,  on  a 
breach  by  it,  the  sum  of  five  hundred  dollars  as  liquidated 
damages,  it  was  held  that  this  sum  was  not  a  penalty  and 
could  be  recovered.  ^^^ 

A  frequent  application  of  this  principle  is  found  in 
contracts  made  for  the  production  of  motion  pictures. 
The  owner  of  a  play  frequently  contracts  with  a  motion 
picture  company  to  film  the  play;  he  may  also  agree  to 
play  the  star  part  in  it.  In  consideration  he  agrees  to 
take  a  percentage  of  the  profits. 

In  an  action  brought  by  the  owner  of  the  play  for 
damages  for  breach  of  the  contract,  where  the  company 
fails  to  make  a  production,  it  would  be  impossible  for 
him  to  prove  his  damage,  for  there  is  nothing  wliich  would 
serve  as  a  basis  on  which  the  probable  profits  of  the 
picture  could  be  estimated.  Hence,  the  wisdom  in  this 
instance,  of  a  lifiuidatcd  damage  clause. 

But  where  a  defendant  has  agreed  to  compensate  the 
plaintiff  in  profits,  and  the  contract  has  been  partially 
performed,  and  some  performances  have  been  given,  this 

'"  Mawson  v.  Leavitt  (1896),  16  Misc.  (N.  Y.)  289;  37  N.  Y.  Supp. 
1138. 


PROFITS   AS   A    BASIS    FOK    DAMAGKS 


153 


establishes  a  basis  on  which  future  profits  may  l>e  roni- 
puted.''"*  That  alone  is  the  guide  for  hxiug  the  damages. 
Neither  the  evidence  of  experts  on  what  profits  might 
have  been  made,  or  evidence  on  what  plaintiff  earned  with 
a  third  party  at  some  time  prior  thereto,  is  admissible.''^ 
In  a  recent  decision  "°  plaintiff  had  contracted  with 
the  defendant  company  to  manufacture  a  picture  and 
turn  the  same  over  to  it.  Upon  doing  so  he  was  to  re- 
ceive a  lump  sum  equal  to  the  cost  of  producing  the  pic- 


'^ElUler  V.  Brooks  (1SS6),  54 
Super.  Ct.  (N.  Y.)  73.  Plaintiff 
was  to  receive  under  her  contract 
in  lieu  of  all  compensation  a 
portion  of  the  profits  of  tlie  under- 
taking. Held  that  the  testimony 
of  experts,  theatrical  managers, 
as  to  what  profits  would  have 
been  made  was  incompetent. 

Held  further  that  evidence  of 
what  plaintiff  made  under  similar 
forms  of  agreement  with  some 
third  party  three  or  four  years 
before  was  incompetent. 

Held  further  tliat  the  proper 
manner  to  compute  profits  was 
•  to  take  the  period  during  which 
the  agreement  was  in  operation 
and  take  the  profits  made  during 
such  period  as  the  basis  of  com- 
putation. 

'^^Todd  V.  Kcene  (1896),  167 
Mas.s.  157;  45  N.  E.  81.  De- 
fendant refused  to  jwrmit  plain- 
titT  to  perform,  plaintiff  was  to 


receive  a  percentage  of  the  re- 
ceipts. It  was  lield  that  testi- 
mony of  plaintiff  giving  receipts 
of  similar  performances  given  by 
him,  also  showing  his  reputation, 
repute  and  popularity,  also  show- 
ing that  during  the  previous  year 
he  had  played  in  the  same  theatre 
to  a  large  audience  and  that  the 
town  was  the  seat  of  an  institu- 
tion of  learning  and  that  his  per- 
formance would  appeal  to  a  large 
number  of  students,  was  inad- 
niissil)!e  on  the  question  of 
damages  and  that  plaintiff  was 
entitled  to  nominal  damages 
only. 

^*°  Goldberg  v.  Popxdar  Pictures 
Corporation  (1917),  X.  Y.  Law 
Journal,  Jan.  20,  Greenbaum,  J. 
The  api^eal  taken  in  the  action 
and  reported  in  (1917),  178  A.  D. 
(X.  Y.)  S6,  was  not  from  the 
order  matle  in  pursuance  of  the 
motion  above  reported. 


154  THE    LAW   OF   MOTION   PICTURES 

ture  and  subsequently  a  share  of  the  gross  receipts  reaHzed 
from  the  exhibition  of  the  picture.  Defendant  refused 
to  take  and  pay  for  the  picture,  and  plaintiff  brought 
action.  Judge  Greenbaum  held  that  the  complaint 
should  have  set  up  a  case  for  damages  for  the  breach  of  a 
contract.    Said  he: 

"Upon  the  defendant's  failure  or  refusal  to  accept  the 
negative  and  films  the  plaintiffs  had  the  right  to  retain 
them  and  to  hold  the  defendant  liable  for  damages  for 
the  breach  of  contract  if  its  refusal  to  accept  was  un- 
justifiable. These  damages  would  be  measured  by  the 
actual  cost  to  the  plaintiffs  of  producing  the  negatives 
and  films,  and  of  the  proportionate  amount  of  the  gross 
receipts  derived  by  the  defendant  from  the  picture,  as 
pro\'ided  in  the  contract.  It  is  obvious,  however,  that  it 
would  he  impossible  in  this  case  to  establish  what  the  gross 
receipts  would  be  where  the  defendants  have  failed  to  accept 
the  films." 

Section  50. — ^Producer's  offer  of  re-employment  after 
breach. 

Since  it  is  the  duty  of  the  actor,  where  he  has  been 
discharged,  to  mitigate  the  damages  by  seeking  other 
employment,  it  is  his  duty  to  accept  employment  offered 
by  the  producer  who  has  discharged  him,  providing  the 
offer  is  made  in  gofjd  faith,  is  for  the  balance  of  the  con- 
tract period,  for  the  same  kind  of  services  as  under  the 
contract,  and  providing  the  actor  is  still  out  of  employ- 
ment. 

Where  the  actor  was  discharged,  the  producer  in  his 
offer  to  re-employ,  is  reciuired  to  tender  all  moneys  due 


riiODrcEu's  orrnni  of  re-employment  after  dreach    loo 


and  accruing  unclor  the  contract  between  the  time  of  the 
discharge  and  the  time  of  the  ofTer.  That  is  tlie  test  of 
good  faith. 

Wliere  the  actor  was  compelled  to  leave  because  of  the 
brutaUty,  abuse  or  other  improper  treatment  of  the  pro- 
ducer or  those  iii  his  employ,  he  may  ignore  such  offer  of 
re-employment,  as  he  is  not  required  to  subject  himself 
again  to  such  treatment. 

The  services  to  be  rendered  under  the  re-employment 
and  the  duration  of  the  same  must  be  substantially  the 
same  as  under  the  original  contract.''^ 

\Miere  the  actor  has  obtained  emploj-ment  elsewhere, 
he  is  not  bound  to  abandon  it  in  order  to  accept  such 
oJBfer  of  re-employment.'^^ 


>«•  DcLoraz  v.  McDowell  (1893), 
68  Hun,  170;  22  N.  Y.  Supp.  606; 
aff'd  142  N.  Y.  664;  37  N.  E.  570. 
Plaintiff  was  employed  for  a  def- 
inite period.  Before  entering 
upon  the  performance  of  her 
duties  she  was  discharged.  Later 
defendant  made  an  offer  to  en- 
gage her  for  an  indefinite  period 
which  plaintiff  refused.  Held 
that  although  defendant  might 
luive  .set  up  the  offer  to  engage 
as  a  partial  defense  in  mitigation 
of  damages  yet  he  might  not  set 
up  such  'jffer  and  refusal  as  a 
complete  defense  to  the  action. 
Defendant  cannot  substitute  a 
contract  of  iiulelinit(>  hiring  for 
one  of  a  definite  period. 

'*'■*  Z)eari«^  v.  Pearson  (1894), 


8  Misc.  (N.  Y.)  269;  28  N.  Y. 
Supp.  715.  "After  the  termina- 
tion of  the  contract  by  defend- 
ant's breach  it  could  not  be  rein- 
stated and  plaintiff  deprived  of 
her  cause  of  action  except  by 
mutual  consent.  Defendant  had 
a  locus  poenitentia?,  but  only  to 
the  extent  of  enabling  him  to 
reduce  plaintiff's  damages  by 
providing  her  with  employment 
of  the  same  kind,  which  plaintiff 
would  have  been  bound  to  accept 
unless  in  the  meantime  she  had 
entered  upon  another's  employ- 
ment or  her  refusal  wa.s  justifiable 
upon  substantial  grounds,  uniler 
I)ain  of  suffering  a  diminution  of 
lier  recovery  to  the  extent  of  the 
earnings    she    would    have    re- 


156 


THE    LAW    OF   MOTION   PICTURES 


An  offer  of  re-employment  may  be  pleaded  by  defend- 
ant, but  it  is  not  a  total  defense  to  the  plaintiff's  cause  of 
action.  It  may  simply  be  set  up  in  reduction  of  and  in 
mitigation  of  damages.  ^'^'^ 

Section  51. — Grounds  for  discharge. 

An  actor,  hke  any  other  employe,  may  be  discharged 
for  a  violation  of  any  express  or  implied  covenant  of  his 
contract  of  emplo;yTnent. 

A  prolific  source  of  discord  between  actor  and  producer 
is  the  failure  of  the  actor  to  appear  at  rehearsals;  and 
where  this  failure  to  attend  is  willful  or  intentional,  the 
actor  may  properly  be  discharged.  ^^* 


ceived  from  the  employment 
offered  her." 

1"  DeLoraz  v.  McDowell  (1893) , 
68  Hun  (N.  Y.),  170;  22  N.  Y. 
Supp.  606;  aff'd  142  N.  Y.  664; 
37  N.  E.  570;  Dearing  v.  Pearson 
(1894),  8  Misc.  (X.  Y.)  269;  28 
N.  Y.  Supp.  715. 

'**  Fisher  v.  Monroe  (1891),  12 
N.  Y.  Supp.  273.  Where  plaintiff 
had  been  engaged  as  an  actress 
for  a  season  of  30  weeks,  and  she 
failed  to  appear  at  a  rehearsal. 
Held  that  her  failure  to  appear 
wa.s  not  explained  and  that  it 
wa.s,  under  the  circumstances, 
ground  for  discharge,  and  a  ver- 
dict in  her  favor  should  be  .^et 
aside.  Reversing  Fisher  v.  Mon- 
roe (1800),  11  N.  Y.  Supp.  207, 
where,   however,  the  court   also 


said:  "And  if  the  failure  to  at- 
tend (rehearsal)  was  willful  or 
intentional,  the  plaintiff  was  prop- 
erly discharged,  and  cannot  re- 
cover." 

Spalding  v.  Rosa  (1877),  71 
N.  Y.  40;  Slrackosh  v.  Slrackosh 
(1890),  11  N.  Y.  Supp.  251. 
Compare  Robinson  v.  Davison 
(Eng.)  (1871),  L.  R.  6  Exch.  269, 
where  illness  was  held  to  be  an 
excuse.  Sec  also :  Wolfe  v.  Howes 
(1859),  20  N.  Y.  197;  Fuller  v. 
Broion  (1846),  11  Mete.  (Mass.) 
410;  Jerome  v.  Queens  City  Cycle 
(1900),  163  N.  Y.  351;  57  N.  E. 
485;  Fenton  v.  Clark  (1839),  11 
Vt.  557;  Rolfs  v.  Pooley  Furn.  Co. 
(1912),  176  III.  Ai)p.  93;  Beck'man 
V.  Garrett  (1902),  66  Ohio  St.  136; 
64  N.  E.  62;  Development  Co.  v. 


GROUNDS    I'OU    DISCHAROE 


157 


But  illness  of  the  actor  may  excuse  him,  if  the  illness 
is  not  protracted  and  does  not  seriously  ailect  the  rei)ro- 
duction  of  the  picture."^ 

Where  the  illness  is,  however,  serious  enough  to  pre\'ent 
the  actor  from  rehearsing  or  performing,  the  right  of  dis- 
charge arises,  as  a  contract  of  employment  is  purely 
personal  in  its  nature,  and  illness  or  other  incapacity  to 
perform  terminates  all  rights  under  it."^ 
King  (190S),  101  Fed.  (C.  C.  A.)      The  owner  of  a  theatre  may  make 


1)1. 

'^^  Robinson  v.  Davison  (EnR.) 
(1871),  L.  R.  6  E.xch.  209. 
Where  the  contract  of  a  performer 
requires  the  appearance  of  the 
artist  on  a  particular  clay,  failure 
to  appear  because  of  illness  docs 
not  necessarily  constitute  a  breach 
of  the  contract. 

See  also:  Spaulding  v.  Rosa 
(1877),  71  X.  Y.  40;  Brayidt  v. 
Goodioin  (1889),  3  N.  Y.  Supp. 
807;  Dickey  v.  LinscoU  (1841),  20 
Me.  453;  DeZeichner  v.  Lamm 
(1914),  187  111.  App.  25;  Wells  v. 
HaJJ  (1915),  105  A.  1).  (X.  Y.) 
705;  151  N.  Y.  Supp.  497;  Young 
V.  Am.  Opera  Co.  (1887),  X.  Y. 
Daily  Reg.,  May  27;  Williams  v. 
Buller  (1914),  105  X.  K.  (Ind.) 
387;  Thomas  v.  Beaver  Dam  Mfg. 
Co.  (1914),  157  Wis.  427;  147 
N.  W.  304;  Bellini  v.  Gye  (Eng.) 
(1870),  1  Q.  B.  183. 

See  also:  Const  v.  Marelzek 
(1855),  4  E.  D.  Smith  (X.  Y  ),  1. 


rea.sonable  rules  and  regulations 
by  which  the  artists  are  to  be 
governed.  The  contract  in  the 
instant  case  provided  that  ab- 
sence of  the  artist  would  cause  a 
forfeiture  of  the  contract  unless 
such  absence  was  caused  by  ill- 
ness and  provided  furtlier  that 
such  illness  had  to  be  proved  by 
the  doctor  appointed  by  the 
director.  The  fact  that  the  artist 
wais  a  homeopathist  did  not  ex- 
cuse the  artist  from  complying 
with  the  rule  of  the  owner. 

Graddon  v.  Price  (Eng.)  (1827), 
2  C.  &  P.  010;  12  E.  C.  L.  280. 
The  actress  was  given  one  day's 
notice  to  appear  in  the  part  in 
which  she  had  previously  played. 
Held  that  it  wa.^^  a  question  for 
the  jury  whether  the  absence  of 
actress  because  of  illness  justified 
the  imposition  of  a  fine. 

'"  Poussard  v.  Spiers  (Eng.) 
(1870),  1  Q.  B.  I).  410.  Whore 
the  contract  provides  for  employ- 


158 


THE    LAW   OF   MOTION   PICTURES 


Illness  of  the  star  actor,  preventing  the  continuance  of 
the  making  of  the  film  does  not  release  the  producer  from 
his  obligations  toward  the  other  members  of  the  com- 
pany. ^^^ 

Incompetency  is  just  ground  for  discharge. ^^^     But 


ment  for  an  extended  appearance 
and  the  absence  of  the  artist  may 
result  in  serious  injury,  failure  to 
appear  although  caused  by  illness 
gives  the  manager  a  right  to 
rescind  the  contract.  See  also: 
Harley  v.  Henderson  (Eng.) 
(1884),  Times,  Feb.  18,  19. 

Macalay  v.  Press  Pub.  Co. 
(1915),  170  A.  D.  (N.  Y.)  640; 
155  N.  Y.  Supp.  1044.  Plaintiff, 
a  professional  cartoonist,  was  dis- 
charged before  the  expiration  of 
the  term  of  his  contract  because 
of  continued  tardiness  in  coming 
to  work.  It  was  held  that  de- 
fendant was  entitled  to  fix  a  rea- 
sonable time  at  which  plaintiff 
should  report  for  duty,  and  if  the 
employe  did  not  report  at  such 
time  either  through  illness  or 
any  other  cause,  the  defendant 
could  at  his  option  terminate  the 
employment. 

"'  Wcnlworlh  v.  Whitney 
(1903),  25  Pa.  Super.  100.  Con- 
tract provided  for  weekly  pa.y- 
mcnt  with  deductions  only  "for 
any  nights  or  days  on  which  tlie 
party  of  the  second  part  (plain- 


tiff) may  not  be  able  to  perform 
or  sing,  through  illness  or  other 
unavoidable  cause,  or  at  such 
times  that  the  company  may  not 
be  giving  performances."  Held 
that  failure  to  give  performance 
because  of  absence  of  necessary 
artist  where  plaintiff  was  ready 
to  go  on,  was  no  excuse  for  re- 
fusal to  pay  plaintiff  her  com- 
pensation for  the  performance 
even  though  defendant  was  not 
at  fault. 

GaiUin  v.  Searle  (1881),  1  N.  Y. 
City  Court,  349.  Defendant  dis- 
charged plaintiff  because  of  ill- 
ness of  star  of  production  and 
her  inability  to  perform.  Held 
that  such  illness  did  not  relieve 
defendant  from  his  obligation  to 
plaintiff. 

i"**  McLaughlin  v.  Hammerslcin 
(1904),  99  A.  D.  (N.  Y.)  225;  90 
N.  Y.  Supp.  943.  It  was  error 
for  the  trial  judge  to  refuse  to 
charge   (at  defendant's  request): 

"If  tlu!  plaintiff  gave  an  in- 
coiiipctciil  jierformancc  the  de- 
fendant was  at  liberty  to  ter- 
minate   the    agreement    without 


GROUNDS    FOR   DISCHARGE 


150 


what  is  "inconipetcncy"  is  often  a  debatublo  (luestion. 
In  one  case  "incompetency"  was  held  not  to  be  equiv- 
alent to  "unsatisfactory"  and  really  to  mean  the  actual 
physical  disability  of  the  artist  to  appear,"'^  and  not  the 
professional  ciuality  of  the  voice.'""  The  rule  as  to  com- 
petency is  well  stated  in  Brandt  v.  Godwin,^^^  holding  in 
effect  that  tlic  actor  impliedly  warrants  that  he  has  the 
requisite  ability  and  skill  to  perform. 


any  notice  whatever,  and  was 
not  compelled  to  permit  him  to 
perform  for  the  entire  period  of 
the  contract." 

'*' Brand  v.  Godwin  (1890),  8 
N.  Y.  Supp.  339;  (1890),  9  N.  Y. 
Siipj).  743.  An  opera  singer  wa.s 
eiij^uKcd,  a  portion  of  the  contract 
reading:  "In  the  event  either  of 
incompetency  or  of  such  con- 
tinued illness  or  decrease  of 
physical  or  vocal  faculties  as  to 
prevent  one  from  doing  service 
for  a  period  of  more  than  two 
weeks,  the  company  may  in  its 
discretion  cancel  or  annul  the 
contract  with  the  party  in  ques- 
tion, without  i)eiiig  subjected  to 
any  claim  for  damages.  The 
vocal  and  musical  directors  shall 
be  the  .sole  judges  of  the  fact  and 
extent  of  the  incompetency,  in 
applying  this  rule." 

The  court  held  that  "incom- 
I>etency"  was  not  ecjuivalent  to 
"unsatisfactory,"  and  that  some 


proof  of  actual  incompetency 
should  have  been  offered. 

"0  Young  v.  American  Opera 
Co.  (1887),  Daily  Reg.  (X.  Y.), 
May  27.  The  contract  there 
provided  that  in  the  event  of 
incompetency  for  two  weeks,  the 
plaintiff  could  be  discharged. 
The  word  incompetency  was  held 
to  mean  phj'sical  disability  due 
to  illness  and  not  professional 
quality  of  the  voice. 

''-'Brandt  v.  Godwin  (1889),  3 
N.  Y.  Supp.  807.  "  It  is  the  rule 
that  where  a  person  engages  to 
perform  a  service  requiring  the 
possession  of  special  skill  and 
(jualities,  there  is  an  implied 
warranty  on  his  part  that  he  is 
possessed  of  the  retjuisites  to 
perform  the  duties  undertaken, 
and  if  found  wanting,  the  right 
to  discharge  exists."  To  the 
same  effect:  Spaulding  v.  Rosa 
(1877),  71  X.  Y.  40. 


160 


THE    LAW   OF   MOTION   PICTURES 


Discharge  for  incompetency  must  be  made  in  good 
faith  ^^-  and  can  only  be  made  after  the  actor  has  been 
given  a  reasonable  opportunity  to  perform  or  rehearse 
his  role  ^^^  and  on  sufficient  evidence  of  his  incompe- 
tency. ^^^  But  where  the  artist  has  commenced  rehearsal 
and  the  producer  feels  that  he  is  incompetent,  he  is  imder 
no  obligation  to  permit  him  to  continue,  but  may  dis- 
charge him  at  once.^^^ 


^^^Grinnell  v.  Kiraljy  (1890), 
55  Hun  (N.  Y.),  422;  8  N.  Y. 
Supp.  623.  A  contract  in  which 
plaintiff  was  engaged  as  a  sou- 
brette  and  in  which  the  manager 
reserved  the  right  to  discharge 
her  for  incompetency  or  other 
reasons  if  he  became  dissatisfied 
with  her,  held  to  be  qualified  by 
the  use  of  the  words  "in  good 
faith"  and  that  plaintiff  had 
bound  himself  by  those  words  not 
to  act  arbitrarily  or  capriciously. 

>"  Walton  V.  Godwin  (1890),  58 
Hun  (N.  Y.),  87;  11  N.  Y.  Supp. 
391.  The  contract  provided  that 
"the  vocal  and  musical  directors 
shall  be  the  sole  judges  of  the 
fact  and  extent  of  the  incom- 
petency" of  the  plaintiff.  Held 
that  discharge  was  not  justified 
where  after  signing  of  the  con- 
tract plaintiff  was  never  called 
upon  to  rehearse  or  perform. 

"'//ar/e?/  v.  Uemlcrson  (lOiig.) 
(1884),  Times,  Feb.  19.  Plainlilf 
was    engaged    to    play    at    the 


Comedy  Theatre  in  London. 
Four  months  afterward  the  de- 
fendant informed  him  that  the 
author,  the  chorus  mistress  and 
the  conductor  complained  that 
he  was  "frightfully  out  of  tune" 
and  plaintiff  was  accordingly 
discharged. 

Held  that  the  evidence  was 
not  sufficient  to  show  that  plain- 
tiff was  incompetent  to  perform 
his  role,  and  judgment  was  ren- 
dered in  his  favor. 

Charleij  v.  Potthoff  (1903),  118 
Wis.  258;  95  N.  W.  124.  It  was 
for  the  jury  to  say  whether  plain- 
tiff gave  the  kind  of  performances 
contemplated  by  the  contract. 

^''"T/ull  V.  Iloyt  (1899),  37 
A.  D.  (N.  Y.)  521;  56  N.  Y. 
Supp.  78.  An  actress  was  en- 
gaged to  play  a  part,  defendant 
agreeing  to  give  her  "a  trial." 
She  brouglit  this  action  for 
breach  of  a  contract  of  employ- 
ment for  a  season  and  the  court 
nonsuited   her.     See   also:    Mc- 


GROUNDS   FOR  DISCHARGE 


IGl 


The  death  of  one  <jr  more  nieiiibers  (jf  a  troupe  will 
cancel  a  contract  for  their  appearance,  where  the  member 
who  has  died  is  one  of  the  chief  performers  in  the  troupe.'^ 


Laughlin  V.  Ilnmmerstein  (1904), 
99  A.  D.  (N.  Y.)  225;  90  N.  Y. 
Supp.  943. 

Zamco  V.  Hammerstein  (Enp.) 
(10i:{),2!)T.  L.  \{.  217.  Defend- 
ant engaged  plaint ilT  as  an  opera 
singer.  After  rehearsal  defendant 
became  dissatisfied  with  him  and 
refused  to  let  him  appear.  Held 
that  it  was  open  to  proof  whether 
or  not  defendant  was  justified 
in  terminating  the  contract. 

^i»  Spalding  v.  Rosa  (1877),  71 
N.  Y.  40.  Allen,  J.:  "Contracts 
of  this  character,  for  personal 
services,  whether  of  the  con- 
tracting party  or  of  a  third  per- 
son, requiring  skill,  and  which 
can  only  be  performed  by  the 
particular  individual  named,  are 
not,  in  their  nature,  of  absolute 
obligation,  under  all  circum- 
stances. Both  parties  must  be 
supposed  to  contemplate  the 
continuance  of  the  ability  of  the 
j)erson  whose  skilled  services  are 
the  subject  of  the  contract,  as 
one  of  the  conditions  of  the  con- 
tract. Contracts  for  personal 
services  are  subject  to  this  im- 
plied condition,  that  the  person 
shall    b«'   able   at   the   apixjinti-d 


time  to  perform  them;  and  if  he 
dies,  or  without  fault  on  the 
part  of  the  covenantor  becomes 
disabled,  the  obligation  to  per- 
form becomes  extinguished." 

This  ca.se  further  holds  that 
where  a  theatrical  troupe  is  en- 
gaged, it  is  of  the  essence  of  the 
contract  that  the  chief  artist 
shall  perform. 

Glitiseretti  v.  Richards  (Eng.) 
(1907),  Times,  Jan.  26th,  pre- 
sents the  interesting  question 
whether  a  troupe  of  acrobats  can 
insist  on  performance  of  a  con- 
tract when  some  of  the  acrobats 
have  died  or  left  the  troupe  since 
the  making  of  the  contract. 
However,  this  point  was  not  di- 
rectly passed  upon.  See  also: 
Ilarvcy  v.  Tivoli,  Manchester, 
Ltd.  (Eng.)  (1907),  23  T.  L.  R. 
592;  Robi}isoti  v.  Davison  (Eng.) 
(1871),L.  R.  6E.\ch.  269. 

See  in  this  connection:  Phil- 
lips V.  Alhambra  Palace  (Eng.) 
(1901),  1  K.  B.  59.  The  death 
of  one  proprietor  was  held  not 
to  al)rogate  the  contract  with  the 
performer,  and  the  contract  was 
hold,  as  to  such  proprietors,  not 
ix'i-sonal. 


162 


THE    LAW   OF   MOTION    PICTURES 


The  immorality  or  lewd  conduct  of  the  artist  is  suffi- 
cient ground  for  discharge, ^^^  as  well  as  violent  and  abusive 
language  ^^^  and  insolence  ^^^  and  insubordination;  ^^°  so 
that  where  the  conduct  of  a  manager  threatens  the  best 
interests  of  the  theatre,  he  may  be  discharged. ^^^  Indeed, 
unfaithfulness  generally  is  sufficient  gi'ound.^^-  And 
where  the  actor  claims  an  interest  in  the  business  when 
he  has  none  in  fact  he  may  be  dismissed.  ^^' 

^^''  Drayton  v.   Reid   (1874),  5      ploye  was  engaged  in  a  fight  in 


Daly  (X.  Y.),  442.  Where  the 
plaintiff  was  guilty  of  lewd  and 
indecent  conduct,  cursed  and 
swore  and  had  illicit  intercourse 
with  one  of  the  performers,  a 
married  man,  her  discharge  was 
justifiable. 

^^nVade  V.  Hefner  (1915),  84 
S.  E.  (Ga.  App.)  598;  Ernst  v. 
Grand  Rapids  Engr.  Co.  (1912), 
138  N.  W.  (Mich.)  1050;  Bass 
Furnace  Co.  v.  Glasscock  (1886), 
82  Ala.  452;  2  So.  315. 

»^»  Forsythc  v.  McKinney  (1890), 
8  N.  Y.  Supp.  5G1. 

i<5o  Zenatcllo  v.  Hammerstein 
(1911),  231  Pa.  56;  79  Atl.  922. 
The  defendant  averred  that  plain- 
tiff, an  opera  singer,  was  asked  to 
sing  the  tenor  role  in  "The 
Prophet"  and  tliat  he  declined 
to  do  so  without  reason. 

Held  that  this  was  clearly  a 
question  for  the  jur>'.  See  also: 
Ilaag  v.  Rogers  (191 1 ) ,  9  Cla.  Apf). 
G.'>0;  72  S.  E.  46,  where  the  em- 


the  emploj^er's  place  of  business. 

See  also:  Standing  v.  Brady 
(1913),  157  A.  D.  (N.  Y.)  657;  142 
N.  Y.  Supp.  656;  Rajalo  v.  EdeU 
stein  (1913),  140  N.  Y.  Supp. 
1076;  SO  Misc.  (N.  Y.)  153;  Duff 
V.  Russell  (1892),  133  N.  Y.  678; 
31  N.  E.  622;  aff'g  14  N.  Y.  Supp. 
134;  Standidge  v.  Lynde  (1905), 
120  111.  App.  418;  Morrison  v. 
Hurtig  (1910),  198  N.  Y.  352;  91 
N.  E.  842. 

"1  Lacy  V.  Obaldiston  (Eng.) 
(1837),  8  C.  &  P.  80;  34  E.  C.  L. 
300. 

^^^Alexender  v.  Potts  (1909), 
151  111.  App.  587;  Carpenter  Steel 
Co.  V.  Norcross  (1913),  204  Fed. 
(C.  C.  A.)  537. 

'8'  Fitzgerald  v.  George  Nenmes, 
Ltd.  (I'^ng.)  (1902),  Times, 
April  22.  An  editor  who  claimed 
an  interest  in  a  periodical  because 
the  magazine  liad  been  founded 
at  his  suggestion,  was  dismissed 
without  notice.    Held  justified. 


GROUNDS   FOR   DISCHARGE 


163 


The  jjroducer  may  discharge  the  actor  fur  drunkenness; 
one  act  of  drunkenness  is  sufficient;  '^^  and  where  he  is 
sued  for  a  breach  the  producer  may  set  up  drunkenness 
as  a  riglitful  discliargcJ'"''' 

But  where,  after  intoxication,  the  actor  is  retained  in 
his  cmplo^inent,  this  would  probably  be  a  condonation, 
and  he  could  not  subsequently  be  discharged  therefor,'" 
unless  he  persisted  in  his  derelictions.'" 

•" /?a.s.s  Furnace  Co.  v.  Cfa.s.s-      See  Willis  v.  Loucry  (1912),  57 


cock  (1SS6), 82  Ala.  452;  2  So.  315. 
Where  an  employe  while  in  the 
service  of  his  employer  becomes 
drunk  and  manifests  .sucli  drunk- 
enness b}'  boisterous  and  dis- 
orderly conduct,  the  employer 
may  discharge  him  as  it  "is  such 
misconduct  as  to  constitute  a 
violation  of  the  stipulation,  im- 
plied in  every  contract  of  service, 
that  the  employe  will  conduct 
himself  with  such  decency  and 
politeness  of  deportment  as  not 
to  work  an  injury  to  the  business 
of  the  employer."  "Tliis  he  can 
do  by  a  single  act  of  drunken- 
ness." To  the  same  effect: 
GonsoliJi  v.  Gcarhart  (1SG2),  31 
Mo.  585. 

""  Broivn  v.  Bdldtrin-Glenson 
(1891),  13  X.  V.  Supi).  S03.  "Ac- 
cordingly it  was  opep  to  the  de- 
fendant on  the  pleadings  (under 
a  general  denial)  to  show  that 
the  plaintiff's  dismissal  was  riglit- 
Jul,     because     of     into.xication." 


So.  (Miss.)  418.  And  in  par- 
ticular Linton  v.  V.  F.  Co.  (1891), 
124  X.  Y.  533;  27  N.  E.  406, 
which  holds  that  a  defendant 
may  not  offer  pmoi  of  justifica- 
tion for  discharge  under  a  general 
denial,  but  that  the  same  must 
be  pleaded  as  a  defense,  since  a 
complaint  wliicli  alleges  a  con- 
tract and  a  discharge  prior  to 
its  expiration  makes  out  a  prima 
facie  case.  "The  law  will  hot 
presume  that  a  servant  ha.s  been 
derelict  in  his  duty."  The  bur- 
den of  proving  this  is  upon  the 
defendant. 

'•«  BalchcUler  v.  Standard 
Plunger  El.  Co.  (1910),  227  Pa. 
201;75Atl.  1090. 

'"  Macauloij  v.  Press  Pub.  Co. 
(1915),  170  A.  D.  (X.  Y.)  640; 
155  X.  Y.  Supp.  1044;  Ginsberg 
V.  Friedman  (1911),  146  A.  D. 
(X.  Y.)  779;  131  X.  Y.  Supp  517; 
Posbach  v.  Sackelt  A-  Wilhehnn 
Co.   (1909),   134  A.   D.   (X.  Y.) 


164 


THE   LAW   OF  MOTION   PICTURES 


It  has  been  held  that  a  musician  may  be  discharged 
by  his  manager  where  the  musical  union  to  which  they 
both  belong  will  not  permit  the  former  to  play.^^^  And 
an  actor  who  is  violating  the  law  by  not  obtaining  a  re- 
quired Hcense,  may  also  be  discharged.  ^^^ 

While  actual  notice  is  indispensable/""  no  precise  words 
of  discharge  are  required;  any  speech  by  which  he 
is  informed  that  his  services  are  no  longer  desired 
suffices.  ^'^^ 

The  death  of  the  actor  at  once  terminates  the  contract.  ^^^ 


130;  118  N.  Y.  Supp.  846;  United 
Oil  Co.  V.  Grey  (1907),  102  S.  W. 
(Tex.)  934. 

^^^Scarano  v.  Lemlein  (1910), 
66  Misc.  (N.  Y.)  174;  121  N.  Y. 
Supp.  351.  "Where  both  plain- 
tiff and  defendant  were  members 
of  a  musical  union  and  entered 
into  a  contract  of  employment, 
there  is  a  presumption  that  the 
contract  is  to  be  read  in  the  light 
of  the  union's  by-laws,  in  so  far 
as  such  by-laws  attempt  to  regu- 
late the  terms  of  employment 
of  its  members,  and  defendant 
could  properly  discharge  the 
plaintiff  when,  under  the  by- 
laws of  the  union,  the  plaintiff 
was  preclutlcd  from  performing 
the  work." 

^''^Gray   v.    The   Oxford,   Lim. 
(Eng.)  (1906),  22  T.  L.  R.  684.. 
Defendant  owned  a  music  hall; 
plaint ilT  producc^d  a  sketcli  "Tlic 


Fighting  Parson"  in  it  under  a 
contract  for  six  weeks.  After 
five  weeks  defendant  decided  that 
this  was  a  stage-play  and  could 
not  be  performed  unless  he  had  a 
theatre  license.  He  cancelled 
the  contract. 

Held  that  this  sketch  was  a 
stage-play  and  could  not  legally 
be  produced  in  a  music  hall  and 
that  defendant  was  entitled  to 
cancel  his  contract. 

'■">DeGdlert  v.  Poole  (1888),  2 
N.  Y.  Supp.  651. 

"'Sigmon  v.  GoldMone  (1906), 
116  A.  D.  (X.  Y.)  490;  101  N.  Y. 
Supp.  984. 

As  to  the  burden  of  proof  see: 
Maraita  v.  Ilecr  Dry  Goods  Co. 
(1915),  190  Mo.  App.  420;  177 
S.  W.  718. 

>"  For  detailed  discussion  of 
this  proposition,  see  Sections  10 
and  14. 


GROUNDS    FOR    DISCHARGE 


165 


But  whoro  tho  actor  was  to  receive  part  of  his  compen- 
sation during  the  term  of  the  contract,  and  the  Ijalance 
at  the  end,  his  heirs  may  sue  on  a  quantum  meruit  for 
the  period  during  which  he  performed.'"^ 

^Miere  the  ])arti(>s  agi'ee  Ijeforehand  as  to  the  manner 
and  temis  of  discharge,  it  would  seem  that  they  would 
be  bound  thereby, '^^  and  that  the  damages  recoverable 
would  be  such  as  were  fixed  by  the  contract.'"^ 


>"TFo//c  V.  Howes  (1859),  20 
N.  Y.  197.  Where  contract  of 
employment  provided  that  plain- 
tiff's testate  was  to  receive  par- 
tial compensation  duriiiR  period 
of  employment  and  balance  upon 
termination  of  contract  period 
it  was  held  that  plaintiff  was 
entitled  to  recover  for  his  tes- 
tate's services  upon  a  quantum 
meruit  basis,  where  plaintiff's 
testate  was  incapable  of  carrying 
out  the  agreement  because  of 
illness. 

"*  Griffin  V.  lirooLlyn  Hall  Club 
(1902),  68  A.  D.  (X.  Y.)  5GG;  73 
N.  Y.  Supp.  864.  "The  contract 
between  the  parties  contained  a 
clause  providing  that  the  de- 
fendant might  'at  any  time  after 
the  begiiming  and  prior  to  the 
completion  of  the  period  of  this 
contract  give  the  |)arty  of  the 
second  part  (plaintiff)  ten  days' 
written  notice  of  its  option  and 
intention  to  end  and  determine 


all  its  liabilities  and  obligations 
under  this  contract,  in  which 
event,  upon  the  expiration  of 
said  ten  days,  all  liabilities  and 
obligations  undertaken  by  said 
party  of  the  first  part  or  its  as- 
signs' should  at  once  'cease  and 
determine.' 

"It  is  urged  that  because  de- 
fendant under  this  clause  might 
have  discharged  plaintiff  upon 
ten  days'  notice,  it  cannot  be 
held  liable  upon  its  breach  for 
damages  for  more  than  that 
period.  {Watso7i  v.  Russell,  149 
N.  Y.  3S8.) 

"We  are  unwilling  to  adopt 
this  view.  We  are  not  interested 
in  what  defendant  might  have 
done  under  this  contract,  but 
in  what  it  did  do." 

Watson  V.  Russe'l  (1896),  49 
X.  Y.  3,S8;  44  N.  E.  161. 

'»  Egbert  v.  Sun  Co.  (1903),  126 
Fed.  (C.  C.)  568. 


166 


THE    LAW    OF   MOTION    PICTURES 


Section  62. — Actor's  breach  of  the  contract— damages. 

While  a  producer  who  engages  an  actor  and  "features" 
hun  in  an  important  role,  may  suffer  considerable  pecun- 
iary loss  because  of  the  latter's  breach  of  the  contract,  it 
is  not  an  easy  matter  to  collect  damages  therefor.  Of 
course,  the  producer  has  a  cause  of  action  agamst  the 
actor,  ^"^  but  that  helps  him  very  little,  smce  it  is  next  to 
impossible  to  find  a  true  basis  for  damage. 

The  way  in  which  this  is  usually  overcome  is  to  insert 
in  the  contract  a  clause  for  Hquidated  damages  to  be  paid 
by  the  actor  m  the  event  of  his  breach.  Where  such 
damages  are  reasonable  in  amount,  the  court  will  uphold 
them.'"^    The  safest  clause  to  insert  is  one  providing  that 


"6  Placide  v.  Burton  (1859) ,  17 
Super.  Ct.  (N.  Y.)  512.  A  man- 
ager may  maintain  an  action 
against  an  actor  who  failed  to 
appear  upon  the  date  agreed 
upon,  for  the  damages  sustained 
by  him  by  reason  of  the  breach. 

Bellini  V.  Gye  (Eng.)  (1876),  1 
Q.  B.  D.  183.  Plaintiff  was  en- 
gaged especially  as  a  tenor  to 
apj)ear  in  London.  He  failed  to 
arrive  in  time  to  attend  rehearsals, 
because  of  illness,  and  when  he 
offered  to  perform  dofciulant 
refused  to  permit  him,  claiming 
a  breach. 

IIcM  that  defendant  could  not 
rescind,  but  that  he  could  have 
sued  j)Iaintiff  at  law  for  tlio  diitii- 
agcs  sustained;  that  his  covenant 


to  appear  on  a  specified  opening 
date  did  not  go  to  the  root  of  the 
matter — in  other  words,  it  was 
not  of  the  essence  of  the  contract. 

1"  Bustanobyv.  Revardcl  (1911), 
71  Misc.  (N.  Y.)  207;  130  N.  Y. 
Supp.  894.  Plaintiff  was  the 
owner  of  a  restaurant.  It  agreed 
with  defendants  to  employ  them 
at  SI  15  a  week  as  musicians  for 
two  years,  and  the  contract  pro- 
vided that  in  case  defendants 
breached  the  same  they  should 
be  liable  for  SI, 000  as  liquidated 
damages. 

Held  that  in  view  of  the  fact 
that  in  case  of  a  breach  the  dam- 
ages to  plaintiff  would  necessarily 
be  uncertain,  this  was  a  reason- 
able provision. 


actor's   BIIEACH    Oh    THE    CONTRACT 


l»i7 


tho  actor  will  pay  as  liquidated  damages  an  amount 
equal  to  what  he  would  have  received,  had  he  performed.''* 
It  matters  very  little  whether  the  words  "penalty"  or 
"li(iuidated  damages"  are  used.  The  courts  will  not  be 
bound  1)}'  the  language  of  the  contract.'"* 


Tlic  contract,  however,  wa.s 
void  for  want  of  mutuality  since 
the  plaintifT  ilid  not  agree  to  hire 
defendants  for  two  years,  and 
since  it  had  tiie  privilege  of  dis- 
charging tliom  at  any  time. 

Conrial  Mclwp.  Opera  Co.  v. 
Brin  (1910),  G6  Misc.  (X.  Y.) 
282;  123  N.  Y.  Supp.  G.  Where 
in  a  contract  for  ser\'ices  of  a 
musical  artist  it  is  provided  that 
upon  a  breach  he  shall  pay  as 
liquidated  damages  a  specified 
sum,  tlie  court  will  award  judg- 
ment for  such  sum  to  the  in- 
jured party  where  it  is  impossible 
to  ascertain  the  exact  loss  or 
damage  which  the  injured  party 
may  sustain  by  reason  of  the 
breach. 

"^Corsi  v.  Mardzck  (ISoo), 
4  E.  D.  Smith  (N.  Y.),  1.  Ildd 
that  a  provision  in  a  contract 
between  a  singer  and  director  of 
opera  whereby  the  singer  for- 
feited one  month's  salary  ujion 
his  failure  to  appear  at  any  enter- 
taiiunent  for  whicli  he  might  W 
announced  unless  it  was  due  to 
illness  of  the  artist,  such  illness 


to  Ije  certified  by  the  doctor  ap- 
I)ointed  by  the  director,  was 
valid. 

G aiders  Green  Am.  &  Dev.  Co. 
V.  Relph  (Eng.)  (1915), 31  T.  L.  R. 
343.  Defendant,  an  artist ,  agreed 
to  perform  twice  an  evening  at 
plaintiff's  music  hall.  For  his 
default  he  agreed  as  liquidated 
damages  to  pay  the  amount  he 
would  have  received  for  each 
performance.  The  contract  was 
subsequently  modified,  and  de- 
fendant defaulting,  the  court 
held  him  liable  in  damages  as 
computed  by  the  modification. 

>■»  Pador  v.  Solomon  (1899),  26 
Misc.  (N.  Y.)  125;  55  N.  Y. 
Supp.  956;  afT'g  25  Misc.  (X.  Y.) 
322.  In  a  contract  between  a 
theatre  manager  and  actt)rs  it 
w;is  provided  that  upon  a  breach 
by  the  actors  that  they  would 
become  liable  to  a  penalty  of 
S.')t)0.  Held,  that  was  rea-^onable, 
and  not  disproportionate,  and 
plaintiff  recovered.  Held  further 
tliat  the  fact  that  the  word 
"iM'nalty"  was  used  did  not 
make  it  such.    The  courts  would 


168 


THE    LAW   OF  MOTION   PICTURES 


It  sometimes  happens  that  the  producer  and  actor 
agree  to  divide  the  profits,  and  that  one  of  the  parties 
subsequently  refuses  to  carry  out  his  agreement  in  that 
respect.  The  courts,  construing  a  contract  of  this  nature, 
usually  hold  it  to  be  one  of  employer  and  employe,  and 
not  one  of  joint  venture. ^^^ 

Where  the  actress  was  required  to  pay  her  manager  a 
specified  percentage  of  the  profits  above  twenty  thousand 
dollars  it  was  held  that  the  word  ''profits"  was  in- 
tended to  mean    ''net   receipts"  and  that    the  actress 


not  be  bound  by  the  word,  but 
rather  by  the  intent  of  the  par- 
ties, and  by  the  facts. 

^^'^Mallonj  V.  Mackaye  (1899), 
92  Fed.  (C.  C.  A.)  749;  Mackaye 
V.  Mallory  (cross  bill).  Mallory, 
a  theatrical  manager,  made  a 
contract  with  Mackaye  whereby 
defendant  agreed  to  give  his 
exclusive  services  to  Mallory  for 
a  period  of  ten  years  as  actor, 
author,  director  and  inventor, 
tiic  literary  property  and  inven- 
tion of  Mackaye  to  belong  ab- 
solutely to  Mallory.  Mallory 
agreed  to  pay  Mackaye  a  speci- 
fied sum  per  annum  and  in  addi- 
tion thereto  a  portion  of  the 
profits.  Held  that  the  relation- 
ship between  the  parties  was  one 
of  employer  and  employe  and 
not  one  of  jf)int  ventures. 

After    the    expiration    of    the 


second  year  Mackaye  abandoned 
the  contracts.  Held  that  the 
contract  was  entire  and  not 
severable  and  that  a  breach  as 
to  a  material  part  by  one  party 
discharged  the  other.  Heldjurlher 
that  where  after  an  abandon- 
ment of  the  contract  by  one 
party,  the  other  served  notice 
of  termination  as  provided  by 
the  contract,  the  giving  of  such 
subsequent  notice  of  termination 
did  not  constitute  a  waiver  of  the 
breach. 

To  the  same  effect:  Thomas  v. 
Springer  (1909),  134  A.  D.  (N.  Y.) 
640;  119  N.  Y.  Supp.  400;  Keith  v. 
Kdlerman  (1909),  Ki!)  Fed.  {C.  C.) 
19G;  McLdlan  v.  (loodicin  (1S99), 
4.3  A.  D.  (N.  Y.)  148;  59  N.  Y. 
Supp.  290.  For  a  discussion  of 
and  excerpts  from  the  above 
cases,  see  Section  02. 


CHANGING    THK    MOTION    Pir'TT'RE  169 

could    not   charge   the   cost  of   production   against  the 
prolits."*' 

Section  53. — Changing  the  motion  picture. 

hi  making  a  motion  i)icturc',  scenes  are  taken  according 
to  a  set  plan,  the  scenario.  The  scenes  are  not  taken 
consecutivcl}',  in  their  logical  sequence,  but  in  such  se- 
quence as  will  complete  the  picture  most  rapidly  and 
involve  the  least  expense. 

]\Iany  scenes  are  taken  over  a  number  of  times  in  order 
to  insure  perfection  both  from  a  photographic  and  acting 
vie^^'point. 

After  all  the  scenes  outlined  in  the  plan  are  taken,  the 
different  portions  of  tlie  film  are  assembled  and  viewed, 
and  those  scenes  which  are  inferior  in  acting  or  in  photog- 
raphy, those  which  are  dui)lications  and  those  which 
retai-d  the  action  are  "cut."  The  remahiing  scenes  con- 
stitute the  finished  film. 

The  ciuestions  which  naturally  present  themselves  are: 
may  the  motion  picture  producer  after  the  film  is  set  up 
in  its  final  form,  change  the  order  of  the  scenes;  may  he 
edit  scenes,  ma}-  he  interpolate  new  scenes  which  were 
taken  separately  from  the  scenes  of  the  film;  may  he  take 
scenes  of  one  picture  for  which  the  actor  si)ecially  posed 
and  make  use  of  such  scenes  in  an  entirely  difTerent  film; 
and  may  he  take  scenes  which  have  been  discarded  be- 
cause of  inferior  acting  or  poor  i)h()tograi)hy  or  because 
they  were  "repeats"  and  make  such  use  of  them  as  he 
sees  fit. 

»'JV/a(/cr  V.  Nethersolc  (1902),  71  A.  D.  (X.  Y.)  383;  75  X.  V. 
Supp.  987. 


170  THE    LAW   OF   MOTION    PICTURES 

None  of  the  above  questions  has  as  yet  come  before 
the  courts,  but  it  is  reasonable  to  assume  that  the  courts 
will  apply  to  such  questions  those  rules  of  law  which  have 
developed  in  the  common  law  for  the  protection  of 
creators  of  literary  work. 

The  analogy  is  very  close  between  the  owner  of  a  novel 
or  play  to  whom  the  author  or  playwright  has  sold  his 
work  outright  or  by  whom  the  author  or  playwright  was 
engaged  to  create  such  work,  and  that  of  an  actor  who 
has  posed  in  a  motion  picture. 

In  the  former  case  the  effort  of  the  artist  has  resulted 
in  a  work  which  portrays  hy  means  of  language  dramatic 
action.  In  the  latter,  the  effort  of  the  artist  has  resulted 
in  a  work  which  portrays  hy  means  of  pictures  dramatic 
action.  In  both  instances  the  legal  title  in  the  product 
is  in  the  owner  of  the  finished  work,  who  alone  may  ex- 
ercise dominion  over  it.  In  both  cases  the  artist  has  an 
interest  remaining  in  the  property  because  his  re-putation  and 
standing  are  dependent  upon  the  proper  use  of  the  prop- 
erty. Moreover,  in  both  cases  the  owner  of  the  work  may 
use  the  name  of  the  artist  in  the  exploitation  of  the  work. 

We  have  already  discussed  the  rights  of  an  author  or 
playwright  who  has  parted  with  title  to  his  work  by  out- 
right sale,  and  those  of  an  author  or  playwright  who  has 
never  had  title  in  the  results  of  his  labor  because  of  the 
relationship  of  oni])loyer  and  employe. '^^ 

Let  us  api)ly  those  rules  to  the  questions  before  us. 

The   finished   film  coming  from  the  cutting  room  is 
similar  to  the  work  of  the  author  or  playwright  delivered 
in  final  form  to  the  purchaser  thereof. 
'"^  See  Section  12, 


rHANCiING    THK    MOTION    PICTURE  171 

The  motion  picture  producer  may  change  the  order  of 
the  scenes,  may  edit  scenes  and  may  add  such  scenes 
which  have  been  discarded  because  they  were  "repeats" 
or  because  they  were  regarded  in  the  cutting  process  as 
rctartling  the  action;  hut  only  in  so  far  as  such  changes 
in  the  picture  are  not  radical  in  their  nature  or  do  not 
constitute  a  mutilation  of  the  film.  By  radical  is  meant 
such  a  change  as  will  occur  for  instance  where  a  feature 
film  is  cut  down  to  a  two-reel  film  or  vice- versa,  where  by 
adding  a  large  number  of  discarded  scenes  a  one  or  two 
reel  film  is  stretched  into  a  feature  picture.  With  re- 
spect to  mutilation  it  is  a  (luestion  of  fact  in  each  instance. 

The  remedy  both  in  the  case  of  a  radical  change  and  in 
that  of  mutilation  is  an  action  for  libel. "^^  Title  in  the 
work  being  in  the  motion  picture  producer  the  actor  may 
not  go  into  equity  to  enjoin  the  exhibition  of  such  changed 
film,'^'  unless  in  addition  to  the  libel,  there  is  the  clement 
of  "passing  off"  or  fraud  and  deception  of  the  ])ub]ic. 

»"  See  Section  12.  coinpleted  liis  work  therein.  The 
^^*CliapUn  V.  Essanay  (191G),  lihn  \v:is  then  released  a.s  a  four- 
N.  Y.  Law  Journal,  May  23d,  reel  feature  film.  The  plaintiff 
Hotclikiss,  .].;  alT'd  174  A.  D.  contended  that  under  his  con- 
(X.  Y.)  SOO.  IMaiiitiiT  posed  for  tract  tlie  defemlant  could  not 
defendant  in  a  two-reel  film  which  change  the  film  in  any  manner, 
wa.s  entitled  "  Burles(|ue  on  Car-  after  its  completion  by  him. 
men."  The  defendant,  after  the  without  first  securing  his  con- 
termination  of  plaintilT's  em-  sent.  He  also  contended  that 
ployinent,  inserted  a  number  of  the  .stretching  of  the  film  by  in- 
discarded  scenes  taken  in  the  serting  discarded  scenes  and 
course  of  the  making  of  the  film  scenes  taken  without  his  par- 
and  also  added  several  scenes  ticipation,  all  of  which  retarded 
made  without  the  |)articipati()n  the  action  and  destroyed  his 
of  the  plaintiff,  and  after  he  had  pruminciuv  in  tlie  lilm,  .seriously 


172 


THE    LAW   OF   MOTION   PICTURES 


In  the  same  manner  that  an  author  or  playwright  has 
a  right  to  have  the  identity  of  his  work  retained,  so  an 
actor  is  entitled  to  have  the  identity  of  the  picture  in 
which  he  posed  retained.  The  motion  picture  producer 
may  not  separate  particular  scenes  from  the  film  and 
make  use  of  them  elsewhere,  nor  has  he  the  right  to  in- 


injured  his  reputation  and  stand- 
ing as  a  motion  picture  "  star." 

In  denying  a  motion  for  an 
injunction  pendente  lite,  the 
court  said: 

"Notwithstanding  the  earnest 
argument  of  counsel  for  the  plain- 
tiff, I  think  this  motion  should 
be  denied  principally  for  the  fol- 
lowing reasons: 

"(1)  Plaintiff's  right  under  par- 
agraph third  of  the  contract  of 
December,  1914  (assuming  such 
contract  to  have  remained  in 
forte  unaltered),  to  enjoin  the 
production  because  he  has  not 
approved  of  the  play  is  doubt- 
ful. 

"(2)  The  play  itself  is  undoubt- 
edly the  property  of  the  Essanay 
Film  Manufacturing  Company, 
by  which  company  plaintiff  was 
employed,  and  the  circumstances 
of  plaintiff's  services  in  connec- 
tion with  the  creation  of  the  play 
distinguish  the  case  from  those 
cases  which  hav(!  njjplied  the 
prinfii)lo  of  another's  exclusive 
right  <;f  literary  j)roi)erty. 


"  (3)  The  facts  do  not  justify  a 
claim  that  the  association  of 
plaintiff's  name  with  the  play 
as  produced  amounts  to  a  fraud 
upon  the  public.  A  fair  construc- 
tion of  the  advertisements  of  the 
play  is  not  that  plaintiff  is  the 
author  or  producer,  but  that  he 
is  the  star  or  principal  actor. 

"(4)  It  is  not  claimed  that  so 
far  as  he  is  pictured  in  the  play 
his  part  is  garbled  or  distorted. 
Whatever  of  him  is  shown  is  a 
truthful  representation.  Whether 
plaintiff's  contract  rights  reserve 
to  him,  rather  than  to  his  em- 
ployers, the  sole  privilege  of  de- 
termining what  of  his  pictures 
shall  be  incorporated  into  the 
play  as  produced  is  at  least 
doubtful. 

"(5)  Whether  plaintiff  will 
suffer  any  damage  from  the  pro- 
duction is  prol)lematical,  while 
an  injimction  is  certain  to  work 
considerable  loss  to  defendants." 

See  al.so  in  this  connection: 
Cahriel  v.  McCabe  (1896),  74 
Fed.  (C.  C.)  743. 


CONTRACTS   WITH    INFANTS  173 

cori)oratc  new  scenes  taken  from  some  other  film  (jr 
photographed  separately  from  those  taken  specially  for 
the  film  in  question.  The  actor  has  the  same  remedies 
for  any  such  breach  that  an  author  or  pla>'^vright  has. 

Finally,  any  use  made  by  the  motion  picture  producer 
of  those  scenes  which  have  been  discarded  because  of 
their  inferiority  either  in  their  photography  or  acting, 
constitutes  a  hbel. 

Coming  now  to  the  exhibition  of  the  film,  the  po.sitives 
and  the  negatives  are  the  absolute  property  of  the  motion 
picture  producer.  He  may  release  them  at  any  time  he 
sees  fit,  and  through  whatever  exchanges  are  agreeable 
to  him.  The  films  may  be  showTi  in  any  theatres  wherein 
the  positives  are  dehvered.  In  other  words,  the  actor 
has  no  control  over  the  exploitation  of  the  film  unless  he 
has  contracted  otherwise. 

Nor  has  the  actor  any  control  of  the  advertising  issued 
in  connection  with  the  exploitation  of  the  film,  except  as 
by  contract  between  the  parties. 

Section  54. — Contracts  with  infants. 

Infants  are  engaged  to  pose  in  motion  pictures,  not 
only  in  minor  parts,  but  in  important  as  well  as  occa- 
sionally in  stellar  roles. 

Contracts  of  hire  are  voidable  at  the  option  of  the 
infant.  Upon  avoiding  the  contract  the  infant  may  gen- 
erally recover  for  services  rendered,  although  the  producer 
would  be  entitled  to  set  off  any  damage  he  may  have 
sustained  by  reason  of  the  infant's  avoidance. 

The  motion  picture  producer  may  not  enforce  a  nega- 
tive covenant  to  restrain  the  infant  from  working  for 


174 


THE    LAW   OF   MOTION   PICTURES 


anyone  else  during  the  contract  period.  ^^^  The  courts  will 
not  enforce  such  a  negative  covenant  even  where  the 
guardian  or  parents  and  the  infant  are  both  parties  to 
the  agreement.  ^^^ 


^^'Aborn  v.  Janis  (1907),  62 
Misc.  (N.  Y.)  95;  113  N.  Y. 
Supp.  309. 

^'^Aborn  v.  Janis  (1907),  62 
Misc.  (N.  Y.)  95;  113  N.  Y. 
Supp.  309.  The  defendant  Elsie 
Janis,  an  infant,  had  contracted 
through  her  general  guardian 
with  the  plaintiff  for  her  services 
as  an  actress.  She  subsequently- 
rendered  services  for  one  Percy 
Wilhams  and  plaintiff  sought  to 
restrain  her  under  a  negative 
covenant.  The  court,  denying 
the  motion,  said:  "An  adult,  who 
was  bound  to  render  peculiar  and 
valuable  services  to  another, 
and  has  agreed  to  render  them 
for  no  one  else  during  the  term 
of  the  contract,  will,  it  is  to  be 
as.sumed,  continue  to  observe 
his  contract,  if  restrained  from 
rendering  his  services  to  another 
person;  that  is,  the  injunction 
in  its  cogent  effect  upon  adult 
intelligence  would  result  in  per- 
formance of  the  contract,  and  it 
is  for  this  reason  that  the  courts 
have  .•vdf)ptod  the  remedy  hy 
injunction  in  ca.scs  of  contract 
for  personal  services  as  a  means 


to  the  desired  end — specific  per- 
formance of  the  agreement  made 
by  the  party  thus  enjoined.  But 
if  prior  to  the  attainment  of  the 
age  of  twenty-one  years,  a  person 
may  not  ordinarily  make  a  con- 
tract because  of  that  absence  of 
mature  intelligence  which  the  law 
presumes  to  arise  from  nonage, 
how  may  it  be  said  that  tlie  infant's 
intelligence  will  be  affected  by  an 
injunction,  as  though  the  wisdom 
of  an  adult  were  present?  To 
determine  that  such  a  contract 
should  be  specifically  enforced 
by  resort  to  an  injunction  pro- 
hibiting the  breach  of  the  nega- 
tive covenant  would  be  to  say, 
in  effect,  that  the  infant,  a  per- 
son lacking  sufficient  judgment 
to  contract,  must  yet  exercise 
sufficient  judgment  as  to  his  or 
her  personal  interest  to  elect  be- 
tween performing  a  contract  not 
necessarily  wisely  made,  and 
indeed,  presumably  unwisely 
made,  or  take  the  harsh  alterna- 
tive of  starvation  for  a  refusal  to 
perform  at  all  or  for  an  omission 
U)  perform  in  a  sati.sfuctory 
manner;  and   all   this   while  the 


CONTRACTS    WITH    INFANTS 


175 


And  while  it  has  been  said  that  a  contract  of  the  infant 
beneficial  in  its  character  may  be  enforced,'*^  nevertheless 
neither  in  this  country  nor  in  England  will  the  contract 
for  j)ersonal  services  of  the  infant  be  deemed  such  a 
contract.''''^ 


infant,  because  of  inunuturitj', 
is  doomed  to  be  under  the  protec- 
tion of  the  court  as  its  ward." 

VetU  V.  Osgood  (1837),  30 
Mass.  572;  Idc  v.  Brown  (1004), 
178  N.  Y.  26;  70  X.  E.  101. 

See  also:  Gordon  v.  Barr  (1917), 
N.  Y.  Law  Journal,  Jan  20.  Hen- 
drick,  J.:  "In  tliis  motion  to 
restrain  defendants  from  'ren- 
dering services  as  artists  or  the- 
atrical jxTformers,'  the  complaint 
alleges  that  defendants  have 
broken  their  contract  and  threaten 
to  continue  'to  do  the  various 
things  and  matters  in  contra- 
vention of  the  said  agreement.' 
Defendants  state  in  an  affidavit 
that  tlicy  were  only  twenty  years 
of  age  when  they  signed  the  con- 
tract, but  infancy  Ls  not  alleged 
as  a  defense.  Plaintiff  is  a  'man- 
ager' and  acts  as  an  intermediary 
between  tlieatrical  performers  anil 
their  employers.  Defendants  arc 
twin  sisters  and  perform  dancing 
acts  and  sing  at  music  halls  and 
cabarets.  They  claim  that  their 
sers'icos  are  neither  'unique, 
extraordinary    or    ix?culiar'   and, 


therefore,  if  they  have  broken 
the  contract,  plaintifif  has  an 
adequate  remedy  at  law,  and  cite 
Ilaintnerstein  v.  Mann,  122  Supp. 
278;  Lasky  Feature  Co.  v.  Suralt 
&  Fox  Fihi  Corp'n,  154  Supp. 
974,  They  also  argue  that  as 
plaintiff  was  not  a  theatrical 
manager,  but  simply  had  an 
interest  in  their  compensation, 
he  has  an  ample  legal  remedy. 
To  this  point  they  cite  Solman  v, 
Arcaro,  129  N,  Y,  Supp.  689.  I 
do  not  think  that  the  remedy 
of  injunction  can  be  invoked 
unless  plaintiff  makes  a  case 
reasonably  clear  and  in  my 
opinion  plaintiff's  case  lacks  the 
usual  requisites.  The  motion 
is  denied," 

'"/m  re  Livin-gston  (1866),  34 
N.  Y.  555. 

^'»Aborn  v.  Janui  (1907),  62 
iMisc,  (N,  Y.)  95;  113  N,  Y, 
Supp.  309;  Dc  Fratwcsco  v.  Bar- 
num  (Eng.)  (1889),  GO  L.  J.  Ch. 
03. 

In  New  York  it  is  a  misde- 
meanor to  employ  minors  under 
specified  ages  for  singing  or  danc- 


176 


THE    LAW   OF   MOTION   PICTURES 


Section  55. — Inability  of  producer — when  studio  closed 
by  authorities. 

The  inability  of  a  manager  to  open  his  theatre  does  not 
reUeve  him  from  UabiUty  under  his  contract  of  employ- 
ment. ^^^  In  hke  manner  a  producer  is  not  freed  from 
habiUty  because  he  cannot  make  use  of  his  studio. 

But  the  manager  frequently  inserts  a  clause,  intended 
to  modify  his  liability  in  that  respect,  and  if  the  clause 
is  properly  worded,  he  may  succeed  in  doing  so.^^"    But 


ing — see  People  v.  Eicer  (1894), 
141  N.  Y.  129;  3G  N.  E.  4;  People 
V.  Stevens  (1893),  70  Hun  (N.  Y.), 
243. 

«9/e{ce  V.  Miner  (1915),  89 
Misc.  (N.  Y.)  395;  151  N.  Y. 
Supp.  983.  "The  defendant  at- 
tempts to  excuse  his  failure  to 
furnish  employment  for  the  week 
of  December  8th,  1913,  on  the 
ground  that  no  license  had  been 
obtained  for  the  theatre  in  which 
the  performances  were  to  be 
given,  and  it  is  claimed  that  this 
was  an  'interference  or  restraint 
of  a  legal  authority.  .  .  .'  That 
clause  plainly  contemplates  ac- 
tive interference  by  public  of- 
ficials, and  (loos  not  mean  re- 
straint by  law,  or  include  a  case 
where  defendant  failed  to  obtain 
or  cause  to  be  procured  a  theatre 
license." 

Ilardie  v.  Balmain  (Eng.) 
(1902),18T.  L.  R.  .5.39. 


^^''Halcroft  v.  West  End  Play- 
house, Ltd.  (Eng.)  (1916),  S.  C. 
182.  Where  defendant,  owners 
of  a  theatre  in  the  course  of  con- 
struction, had  contracted  with  a 
performer  to  appear  therein  after 
its  completion,  and  the  building 
of  the  theatre  was  not  completed, 
it  was  held  that  defendant  was 
not  liable,  as  the  contract  con- 
tained a  clause  that  it  was  "sub- 
ject to  the  said  theatre  being  in 
the  occupancy  and  possession  of 
the  management." 

Thring  v.  Lucas  (Eng.)  (1903), 
Strong  on  "Dramatic  and  Mu- 
sical Law,"  3d  Ed.,  p.  30.  Where 
the  theatre  was  closed  by  the 
authorities  in  order  that  certain 
repairs  should  be  made.  Held 
that  the  owner  was  not  liable 
under  a  contract  which  con- 
tained a  clause  that  "ICngage- 
ment  to  be  void  if  the  perform- 
ance is  objected  to  by  the  jjublic 


QUESTION'S   OK   TRAVEL 


17 


just  as  ofton  tho  huif!;uap;c  may  ijc  too  broad  or  iiiartiliciui 
and  tlic  result  will  be  that  the  actor  may  recover  dam- 
ages.'^' 

But  the  language  of  such  a  contract  is  strictly  construed, 
and  the  manager  who  assigns  his  interest  in  the  show  to 
another  may  not  evade  hability,  for  that  is  not  a  closing 
of  the  theatre.  1^2 


Section  56. — Questions  of  travel. 

In  filming  a  i)Iay  it  is  frecjuently  necessary  to  take 
scenes  at  places  other  than  at  the  studio  of  the  motion 
picture  producer.  An  actor  who  agrees  to  participate  in 
the  making  of  a  picture  knows  that  he  may  be  required  to 
travel  while  engaged  in  the  making  of  the  picture.    He  is 


authorities,  or  stopped  by  any 
cause  over  wliich  the  manage- 
ment have  no  control." 

'"  Hardie  v.  Balmain  (Eng.) 
(1902),  18  T.  L.  II.  539.  Plain- 
ti(T,  manager  of  a  company,  con- 
tracted with  defendant,  manager 
of  a  theatre,  to  appear  for  six 
niglits,  profits  to  be  divided;  if 
the  theatre  was  closed  through 
fire,  death  in  the  Royal  Family, 
"or  any  cause  whatsoever,"  con- 
tract to  be  terminated. 

Tlie  theatre  was  closed  on 
what  was  to  be  the  opening 
night,  not  having  been  completed. 
Ihid  that  the  manager  of  the 
theatre  was  liable  under  the 
contract. 


"Any  cause  whatsoever" 
meant  any  cause  external  to  that 
outside  the  control  of  the  parties 
to  the  contract.  See  also:  liicc  v. 
Miner  (1915),  89  Misc.  (N.  Y.) 
395;  151  N.  Y.  Supp.  983. 

^'^Loretle  v.  Cullins  (Eng.) 
(190G),  Strong  on  "Dramatic  and 
Musical  Law,"  3d  Ed.,  p.  27. 
In  tlie  contract  for  plaintiff's 
appearance  for  a  week  at  the 
Hippodrome,  it  was  provided 
that  in  the  event  of  the  hall  clos- 
ing for  any  cau.se  tlie  contract 
was  to  terminate.  The  manager 
assigned  his  interest  to  another. 
Held  this  was  not  a  closing,  and 
plaintiff  recovered. 


178  THE    LAW   OF   MOTION   PICTURES 

engaged  to  pose  in  the  picture  and  hence  agrees  to  pre- 
sent himself  at  the  places  where  the  picture  can  be  taken. 
Unless,  therefore,  he  expressly  provides  otherwise  in  his 
contract  of  employment  he  must  attend  at  the  places 
where  the  picture  is  to  be  taken  and  the  cost  of  trans- 
portation, as  well  as  of  his  board  and  lodging,  must  be 
borne  by  him."^ 

Section  57. — ^Booking  agencies. 

In  several  of  the  states,  laws  have  been  passed  re- 
quiring all  agencies  that  procure  employment  for  actors 
to  obtain  hcenses  and  otherwise  comply  with  certain  re- 
quirements. These  agencies  are  not  permitted  to  charge 
more  than  a  fixed  rate  and  for  a  stated  period  during 
which  the  actor  receives  a  salary.  ^^^ 

Attempts  are  often  made  to  evade  the  statute,  by  in- 
serting a  provision  in  the  booking  contract  that  the  person 
procuring  the  engagement  is  a  "manager"  and  that  the 
increased  rate  of  compensation  is  paid  in  consideration 
of  certain  services  rendered  or  to  be  rendered — more  or 

'"  Baity     V.     Melillo     (Eng.)  by  Chapter  587  of  the  Laws  of 

(1850),  10  C.  B.  282;  Smith  v.  1916. 

Herrivg-II all-Marvin     Safe     Co.  Interstate    Amusement    Co.    v. 

(1909)^  115  N.  Y.  Supp.  204.    Sec  Albert  (1913),  161  S.  W.  (Tenn.) 

in  this  connection:  Day  v.  Klaw  488.     A  bookinp;  ap;ency  which 

(1908),  112  N.  Y.  Supp.  1072.  had  made  a  contract  in  one  state 

On  the  question  of  the  distance  for   the   performance  of   certain 

he  may  be  required  to  travel  see:  acts  in  anotlier  state,  was  held 

Gath  V.  Interstate  Amusement  Co.  not  to  have  comphed  with  the 

(1912),  170  111.  App.  614.  provisions  of  the  latter  state  with 

'"<  (Chapter  700  of  the  Laws  of  respect  to  license  and  tax,  and 

1910   (New   York),  as   amended  so  could  not  recover. 


BOOKING    AGENCIES 


179 


less  fictitious.  The  courts  have  i)re vented  recover}'  upon 
sucli  contracts.''-*^ 

The  booking  agent  is  entitled  to  his  compensation  when 
the  introduction  is  effected  and  the  actor  is  eventually 
accepted.'-'*' 

Where  the  contract  of  emplo>Tiient  was  postponed  by 
the  actor  through  force  majeure  the  actor  is  not  obligated 
to  pay  until  he  actually  enters  upon  his  engagement. '^^ 


'»»il/e?/ers  v.  Walton  (1912),  76 
MLsc.  510;  135  N.  Y.  Supp.  574. 
Utld  that  the  plaintiff  who  sued 
for  services  which  he  claimed  he 
rendered  as  "manager"  under  a 
contract  calling  for  a  compensa- 
tion of  5%  of  any  salary  received 
by  defendants  for  performing  in 
a  vaudeville  sketch,  was  evading 
the  Theatrical  Agency  License 
law  (Chap.  700,  Laws  1910, 
amended  1916),  and  a  judg- 
ment in  his  favor  was  reversed. 

'*>  Colics  V.  Maugham  (Eng.) 
(1909),  Times,  Dec.  21.  One 
who  is  in  the  business  of  placing 
dramatic  compositions  for  pro- 
duction is  entitled  to  compensa- 
tion when  in  his  business  ca- 
pacity he  introduces  an  author  to 
a  manager  who  eventually  ac- 
cepts his  play. 

See  also:  King  v.  Broadhurst 
(1914),  164  A.  D.  (N.  Y.)  689; 
1.50  X.  Y.  Supp.  .376.  An  actor 
who    made    a    contract    with    a 


playwright  whereby  he  agreed  to 
procure  a  producer  of  a  play  pro- 
vided he  wa.s  given  the  leading  role 
may  recover  for  the  reasonable 
value  of  his  services  for  securing 
such  a  manager  where  he  waived 
his  right  to  play  the  leading  role 
upon  the  representation  of  the 
playwTight  that  he  would  "do 
what  is  right"  and  other  similar 
expressions. 

^^^  Foster's  Agency,  Lim.,  v. 
Romaine  (Eng.)  (1916),  32  T.  L. 
R.  545.  Plaintiff  sued  for  breach 
of  a  contract  whereby  he  was  to 
be  compensated  bj'  defendant 
for  procuring  an  engagement  in 
Australia.  Becau.se  of  the  dan- 
gers incidental  to  submarine  war- 
fare defendant  postponed  her 
engagement.  Held  there  could 
be  no  recovery,  a.s  defendant  had 
not  breached  the  contract. 

Auckland  &  Bninetti  v.  Col- 
lins (Eng.)  (1S9S),  14  T.  L.  R.  348. 
A  booking  agent's  agreement  for 


180  THE    LAW    OF    MOTION    PICTURES 

Section  58. — Workmen  Compensation  Acts. 

Most  of  the  states  as  well  as  the  federal  government 
have  enacted  compensation  acts. 

Actors  who  are  engaged  to  pose  in  motion  pictures  as 
well  as  directors,  camera  men  and  the  other  employes  of 
the  studio  probably  come  within  the  protection  of  the 
statute  in  a  number  of  states.  In  each  instance  it  is  al- 
ways a  question  of  the  construction  of  the  statute  in- 
volved. ^^^ 

The  interestmg  question  arises  whether  an  actor  em- 
ployed in  a  state  where  a  workmen's  compensation  act  is 
in  force  with  respect  to  members  of  the  theatrical  pro- 
fession can  enforce  his  rights  under  the  act  against  his 
employer  when  the  injury  occurs  without  the  state  while 
he  is  en  tour. 

The  question  is  ordinarily  one  of  construction  of  the 
statute.  In  Massachusetts  the  court  following  the  Eng- 
Ush  rule  "^  has  held  that  the  statute  has  no  extraterritorial 
commission  was  held  cnforcible  the  question  whether  vaudeville 
where  theatre  had  been  torn  actors  come  within  the  provisions 
down  and  re-built.  of  the  Massachusetts  statute. 

>»8  See  Bulletin  No.  203  (Janu-  See  also  for  recent  New  York 
ary,  1917),  of  the  United  States  Statute,  Laws  of  1916,  Chap.  622, 
Department  of  Labor;  Bureau  of  Group  40.  Entitling  to  corn- 
Labor  Statistics,  entitled  "Work-  pensation  those  engaged  in 
men's  Compensation  Laws  of  "printing,  engraving,  photo-en- 
the  United  States  and  Foreign  graving,  stereotyping,  electrotyp- 
Countries"  for  the  text  of  all  ing,  lithographing,  embossing, 
the  statutes  in  force  at  the  present  vmnnjadure  of  moving  piclure 
time.  machines  and  films.  .  .  ." 

See  also:  Bulletin  No.  2  (Jan.,  '»»  Tomalin  v.  Pearson    (Eng.) 

1913,  p.  5),  of  the  Massachusetts  (1909),  2  K.  B.  01;  Schwartz  v. 
Industrial    Accident    Board    on      India  Ridjbcr  (Eng.)  (1912),  2  K. 


WORKMEN    COMPENSATIOV    ACTS  181 

effect.  It  held  that  the  employe,  a  citizen  and  resident 
of  that  state,  could  not  claim  the  benefits  under  the 
statute  although  the  employer  was  a  Massachusetts  cor- 
poration and  the  contract  of  hire  was  made  in  that  state, 
the  accident  having  occurred  in  the  state  of  New 
York.=°o 

The  court  held  that  his  right  to  recover  damages  was 
determined  by  the  law  of  the  state  where  the  accident 
took  place. 

The  same  rule  has  been  enunciated  in  Michigan. -°'  In 
New  Jersey,  however,  the  contrary  conclusion  was 
reached. -°-  The  court  held  that  although  the  statute  was 
not  binding  without  the  hmits  of  the  state,  yet  the  statute 
could  require  a  contract  to  be  made  by  two  parties  to  a 
hiring  and  that  such  contract  should  have  an  extra- 
territorial effect.  The  court  found  that  there  was  an 
implied  contract  between  the  parties  to  compensate  for 
injuries  arising  out  of  the  employment,  and  that  such  con- 
tract could  be  enforced  irrespective  of  the  place  where 
the  injury  was  sustained. 

In  Ohio  the  same  result  was  arrived  at  as  in  New 

B.  299;  Hicks  v.  Maxlon  (Eng.),  laws   under   what   circumstances 

124  L.  T.  Rep.  135.  an  injury  to  tlie  person  will  af- 

^ Gould's     Case     (1913),    215  ford  a  cause  of  action.'" 

Mass.  480;  102  N.  E.  693.    "The  «"  Keyes  v.  Allerdycc,  Michigan 

subject  of   personal   injuries   re-  Industrial  Accident  Board,  .\pril, 

ceived    by    a    workman    in    the  1913. 

course     of     his     employment     is  "•  Deeny  v.  Wright  d-  Cobb,  36 

within  the  control  of  the  sovereign  N.  J.   L.  J.    121,  referred  to  in 

power  where  the  injury  occurs.  Bradbury  on  "Workmen's  Com- 

'It  must  certainly  be  the  right  pcnsation." 
of  each  state  to  determine  by  its 


182  THE    LAW   OF   MOTION   PICTURES 

Jersey,  not,  however,  upon  the  theory  of  an  impUed  con- 
tract, but  by  a  construction  of  the  statute  which  pro- 
xdded  for  compensation  for  injuries  or  death  ''wherever 
occurring."  -°^ 

In  New  York  an  action  was  brought  by  a  seaman  for 
injuries  received  through  negUgence  of  his  employer. ^'^'^ 
It  appeared  that  the  plaintiff  was  employed  by  defendant 
on  one  of  its  ships  for  a  voyage  from  Hamburg,  Germany, 
to  New  York  and  return.  While  in  New  York  harbor  the 
injury  complained  of  occurred.  The  defendant  relied 
upon  a  workmen's  compensation  law  of  Germany  as  a 
bar  to  the  action.  The  court  held  ''a  foreign  law,  to  which 
both  employer  and  employe  engaged  in  interstate  and 
foreign  commerce  and  transportation,  have  subscribed, 
and  upon  the  basis  of  which  the  contract  of  employment 
was  made  and  entered  into,  where  the  cars  or  ships  of 
the  employer  enter  our  state,  and  in  or  upon  which,  while 
within  our  borders  an  accident  occurs  to  the  employe 
through  his  employer's  negligence,  particularly  where  the 
contract  provides  for  a  fixed  compensation  in  case  of 
specified  injury  to  take  the  place  of  a  right  of  action  at 
law,  and  which  is  lawful  both  in  the  place  where  made  and 
that  in  which  the  cause  of  action  arose,  should  obtain 
recognition  and  enforcement  here." 

The    Workmen's  Compensation  Commission    of   New 

«"  Schmidt    Case,    Ohio    State  See  also  saino  case  on  appeal  from 

Liability  lioard  of  Awards,  July  order  to  compel  service  of  a  reply 

10,  VJ\'2  (riiiim  No.  0).  to  the  defense  set  up  in  the  answer, 

'"« Schweitzer  v.  Hamburg,  etc.,  149  A.  D.  (N.  Y.)  900;  134  N.  Y. 

Cesellxchnft     (1012),     78      Misc.  Supp.  812. 
(N.  Y.)  448;  138  N.  Y.  Supp.  944. 


WORKMEN    COMPENSATION    ACTS 


188 


York  has  nilod  that  the  operation  (jf  a  theatre  did 
not  fall  within  the  class  of  "hazardous"  occupa- 
tions. ^"^ 

Under  the  English  Compensation  Act  a  workman 
employed  by  a  lion  tamer  was  killed,  and  it  was  held  that 
the  accident  "arose  out  of  his  employment."  -^  .\nd 
whether  or  not  a  deceased  was  a  stage  manager  entrusted 
with  important  duties  or  whether  his  duties  were  manual 
was  the  question  involved  in  another  case.-°^ 


2"  Matter  of  Samuel  Adler, 
Workmen's  Compensation  Com- 
mission of  New  York,  Claim 
No.  ry2,437.  It  was  held  that  the 
operation  of'  a  theatre  did  not 
fall  within  the  class  of  "hazard- 
ous" occupations  and  a  widow 
was  denied  corni)cnsation  for  the 
death  of  her  husband,  a  property- 
man,  who  was  killed  by  falling 
through  a  trap-door. 

«» Ilapelman  v.  Poole  (Eng.) 
(inOS),  Strong  on  "Dramatic 
and  Musical  Law,"  3d  Ed.,  p.  56. 
The  Workmen's  Compensation 
Act  of  190G  is  here  construed.  A 
workman  was  employed  by  a 
lion  tamer  to  clean  out  the  lion 
cages,  etc.  While  in  charge  of 
the  cages,  a  lion  broke  loose,  and 
in  trying  to  get  the  lion  hack  in 
the  cage,  the  lion  turned  on  him 
and  killed  him. 

Held  that  the  accident  arose 
"out  of  and  in  the  course  of  his 


employment"  and  decedent's  per- 
sonal representatives  were  en- 
titled to  comix-n-sation. 

207  Rushbrook  v.  Grimsby  Palace 
Theatre  (Eng.)  (1908),  25 T.  L.  R. 
258.  The  question  was  whether 
a  "stage  manager  to  take  charge 
of  the  electric  plant  and  to  bill" 
was  a  "workman"  within  the 
meaning  of  the  Employers'  Lia- 
bility Act  of  1880.  Held  that 
he  was.  "Stage-managers  in 
some  theatres,  no  doubt,  in- 
volved important  duties,  but 
that  term  must  be  considered  in 
connection  with  the  actual  duties 
the  deceased  man  was  called 
upon  to  perform,  and  from  the 
evidence  in  this  case  it  seemeil 
clear  that  the  decea.sed  was  really 
nothing  more  than  a  foreman 
.scene-shifter  or  carjx?nter  earning 
25s.  a  week;  he  wa.s  mostly  if  not 
entirely  engaged  in  manual  la- 
bor." 


184  THE    LAW   OF   MOTION   PICTURES 

Section  59. — Garnishment. 

The  salary  of  the  actor  is  subject  to  garnishment  in 
such  states  where  garnishee  statutes  have  been  enacted, 
the  manner  and  procedure  of  the  garnishment,  of  course, 
following  the  particular  state  statute. 

The  New  York  statute  is  typical  of  the  statutes  of  other 
states.  The  proceeding  is  regulated  by  Section  1391  of 
the  Code  of  Civil  Procedure,  which  provides  that  the 
Marshal  or  Sheriff  may  serve  a  garnishee  execution  upon 
the  employer,  who  is  then  required  to  deduct  from  the 
actor's  salary,  if  the  same  be  more  than  twelve  dollars 
weekly,  a  sum  equal  to  ten  per  cent  thereof,  and  pay  it 
over  to  the  levying  officer;  in  default  of  so  doing,  he  may 
be  sued  by  the  judgment  creditor  for  an  amount  up  to  the 
amount  of  the  judgment. 

It  has  been  held  in  England  that  an  actor's  salary  may 
not  be  attached  or  garnisheed  until  it  is  actually  due,  and 
only  while  it  is  unpaid. -°^ 

A  distinction  is  drawn  between  the  remedy  of  garnish- 
ment and  that  of  proceedings  supplementary  to  execution. 
Where  the  salary  has  not  been  wholly  earned  and  become 
wholly  due,  the  judgment  creditor  may  only  proceed  by 
garnishee  proceedings. -°^ 

^^  Hall     V.     Pritchetl     (Eng.)  under  execution,  and  that  such 

(1877),3  Q.  B,  D.  215.  fund    may    be    seized    whecever 

2««  Hayward  v.  Ilayward  (1917),  found.  But  this  is  no  such  case. 
178  A.  D.  (N.  Y.)  92.  "It  is  When  the  execution  was  issued 
quite  true  that  a  fund  represent-  there  was  no  fund  holoiising  to 
ing  a  salary  earned,  whether  in  the  defendant  representing  salary 
the  pos.scssion  of  the  employer,  earned  in  the  hands  of  the  Pal- 
or  of  the  employe,  or  of  a  third  ace  Operating  Cori)()rati()n  (em- 
person,  i.s  not  exempt  from  levy,  ploycr).      The    salary    was    not 


SERIAL   STORIES  185 

Section  60. — Serial  stories. 

In  the  production  of  the  serial  picture  an  interesting 
question  arises.  For  this  kind  of  a  picture  the  actor 
employed  is  usually  one  of  considerable  fame  and  popu- 
larity, and  consetjuently  is  able  to  dictate,  to  a  great 
extent,  the  terms  of  his  contract.  He  usually  demands 
that  each  installment  of  the  serial  picture  shall  be  ap- 
proved by  him  and  so  marked  before  its  release,  and  the 
contract  provides  therefor. 

Suppose  the  artist  arbitrarily  and  in  bad  faith  refuses 
to  a])])rove  of  an  installment  of  the  picture?  The  producer 
has  invested  his  money,  and  is  seemingly  at  the  mercy  of 
the  artist  who,  perhaps  already  contracting  with  another 
producer,  finds  it  to  his  interest  to  impede  and  delay  the 
release  of  the  installment.  In  such  case,  the  producer  is 
at  liberty  to  disregard  that  covenant  in  the  contract,  and 
proceed  with  the  release  of  the  installment  without  obtain- 
ing the  actor's  approval. 

On  the  other  hand,  where  the  actor  is  actuated  by 
proper  motives  and  there  is  no  element  of  fraud  or  bad 
faith  involved,  the  producer  is  at  his  mercy,  and  may  not 
release  the  film  without  the  apj^roval  of  the  actor,  no 
matter  how  whimsical  and  arbitrary  the  latter  may  be. 

In  some  respects,  a  contract  containing  a  clause  of  this 
kind  is  very  similar  to  a  contract  where  the  services  to 

only   not  due  :it  that  time  but  Code.     Upon  tlie  return  of  the 

was  «)nly  i)arti:illy  earned.    There  execution    unsatisfied,    an    order 

is    only    one    way    provided    by  may    be    ol)tained    garnishing   a 

statute  for  reacliing  an  accruing  percentage  of  salary  due  or  to 

salary,  and  that  is  the  means  pro-  become  due." 
vided    in    Section    13'Jl    of    the 


186  THE    LAW   OF   MOTION    PICTURES 

be  performed  are  to  be  ''satisfactory"  to  the  employer. 
Complete  satisfaction  with  all  the  work  is  in  each  instance 
made  a  condition  precedent. ^^^ 

Section  61. — Escrow  agents. 

A  number  of  artists  who  are  sought  after  a  great  deal 
by  producers,  have  devised  a  rather  unique  method  of 
insuring  payment  of  the  salaries  agreed  to  be  paid  to  them 
under  their  contract. 

A  bank  or  trust  company  is  made  escrow  agent.  The 
motion  picture  producer  deposits  with  the  escrow  agent 
a  sum  equal  to  the  total  amount  agreed  to  be  paid  the 
artist,  and  the  bank  or  trust  company  is  dkected  to 
make  payments  to  the  artist  at  stated  periods. 

The  artist  is  thus  assured  his  salary  if  he  lives  up  to  the 
terms  of  his  agreement,  regardless  of  changes  in  the  fi- 
nancial condition  of  the  producer.  The  contract  usually 
provides  as  well  that  in  the  event  of  bankruptcy,  the 
impaid  balance  shall  become  due  and  payable  at  once  to 
the  artist. 

On  the  other  hand,  the  producer  is  protected  by  a  pro- 
vision to  the  effect  that  in  the  event  the  artist  breaches 
his  contract,  he  may  give  notice  to  the  escrow  agent  who 
is  then  required  to  withhold  payments  to  the  artist  until 
arbitrators  provided  for  under  the  contract  render  their 
decision. 

The  escrow  agent  is  made  a  party  to  the  agreement. 
Its  duty  ends  if  it  complies  with  the  terms  of  the  agree- 
ment.   Tf  it  arl)itnirily  assumes  to  act  on  its  own  initiative 
and  disregards  the  express  terms  of  the  contract,  it  be- 
»">  Sec  Section  38. 


WHEN    JOINT    VEXTTTRE 


187 


comes  \vd\)\v  to  the  injurctl  i)urty  for  wliutcvcr  damages 
he  has  sustained  thereby. 


Section  62. — When  joint  venture. 

The  fact  that  an  actor  and  a  manager  agree  to  share 
the  receipts  of  a  play  does  not  necessarily  stamp  the 
transaction  as  a  joint  venture.  An  agreement  to  share 
in  the  losses  is  the  true  test  of  a  joint  venture.-" 


2"  Thomas  v.  Springer  (1909), 
134  A.  D.  (N.  Y.)  640;  119  N.  Y. 
Supp.  460.  An  agreement  be- 
tween a  manager  of  a  tlieatrical 
company  and  a  theatre  owner 
whereby  the  latter  is  to  receive  a 
percentage  of  the  gross  receipts, 
the  proprietor  of  the  theatre  to 
furnish  tlie  scenery,  equipment 
and  regular  employes  of  the 
theatre,  does  not  create  a  partner- 
ship. The  parties  are  inde- 
pciulent     contractors.  Unless 

there  be  an  agreement  to  share 
profits  and  losses  there  is  no  co- 
partnership. 

Keith  V.  Kellerman  (1909),  169 
Fed.  (C.  C.)  196.  Tlie  agree- 
ment between  the  parties  pro- 
vided tliat  defendant  was  to 
render  her  specialty  as  actress, 
in  consideration  of  fifty  per  cent 
of  the  profits.  It  was  held  tliat 
the  contract  was  not  one  of  co- 
partnership but  one  of  employ- 
ment; the  test  being  "whether 


the  parties  are  jointly  interested 
as  principals  and  may  bind  each 
other  by  their  acts  or  engage- 
ments within  the  scope  of  the 
cntcrpri.se." 

Mallory  v.  Mackaye  (1899),  92 
Fed.  (C.  C.  A.)  749.  Plantiff, 
a  theatrical  manager,  contracted 
with  defendant,  an  actor,  wliereby 
defendant  agreed  to  render  his 
exclusive  services  to  plaintifT  as 
an  actor,  author,  director  and 
inventor,  all  of  his  creations  to 
l)ec()ine  the  property  of  the  plain- 
tilT  in  consideration  for  all  of 
which  plaintifT  bound  himself  to 
pay  defendant  a  specified  sum 
per  annum  ami  in  addition 
thereto  a  |)orti()n  of  the  profits. 
The  relationship  existing  between 
tliem  was  held  to  be  that  of  em- 
|)l()yer  anil  employe  and  not  that 
of  joint  ventures. 

See  also:  Mayer  v.  Xelhersole 
(1902),  71  A.  D.  (N.  Y.)  383;  75 
N.   Y.   Supp.   987;   Goldberg   v. 


188 


THE    LAW   OF   MOTION    PICTURES 


Where  the  relationship  is  that  of  employer  and  employe 
the  remedy  for  a  breach  is  an  action  at  law  in  damages. -^^ 

But  where  the  contract  provided  that  defendant  furnish 
the  building  and  pay  certain  of  its  expenses,  and  the 
plaintiff  was  to  give  his  time  and  skill  in  carrying  on  a 
theatre  therein  and  act  as  manager  thereof,  the  defendant 
to  receive  a  fixed  sum  as  rent,  and  in  addition  thereto 
one-half  of  the  net  profits,  losses  to  be  borne  equally  by 
the  parties,  this  was  held  to  create  a  partnership,  and  it 
made  no  difference  that  the  parties  referred  to  themselves 
throughout  as  lessor  and  lessee.^^^ 


Popular  Pictures  Corp.  (1917), 
N.  Y.  Law  Journal,  Jan.  20.  The 
appeal  taken  in  the  action  and 
reported  in  (1917),  178  A.  D. 
(N.  Y.)  86,  was  not  from  the 
order  made  in  pursuance  of  the 
motion  above  reported. 

"2  McLellan  v.  Goodwin  (1899) , 
43  A.  D.  (N.  Y.)  148;  59  N.  Y. 
Supp.  290.  Plaintiff,  a  theatrical 
manager,  agreed  to  conduct  a 
tour  of  the  defendant,  an  actor. 
Defendant  was  to  receive  50%  of 
the  receipts  and  was  to  pay  his 
company  of  players  and  for  cos- 
tumes out  of  such  moneys.  Plain- 
tiff agreed  to  pay  other  expenses 
out  of  his  share  of  the  receipts. 
Plaintiff  did  not  conduct  a  tour 
for  defendant  and  defendant 
earned  moneys  by  employment 
elsewhere.  The  action  was 
brought    for    an    accounting    of 


moneys  earned  by  defendant. 
Held  plaintiff  was  not  in  any 
event  entitled  to  share  in  earn- 
ings of  defendant  as  such  earn- 
ings were  not  received  by  de- 
fendant from  a  tour  conducted 
by  plaintiff;  that  plaintiff's  rem- 
edy, if  at  all,  was  one  at  law  for 
damages  for  breach  of  contract. 

2"  Leavitt  v.  Windsor  Land  & 
Investment  Co.  (1893),  54  Fed. 
(C.  C.  A.)  439. 

See  also:  Cole  v.  Rome  Savings 
Bank  (1916),  96  Misc.  (N.  Y.) 
188;  161  N.  Y.  Supp.  15.  De- 
fendant Rome  Savings  Bank 
made  an  agreement  with  one 
Edwards  whereby  R.  gave  the 
use  of  a  theatre  which  it  owned 
for  one  year  upon  the  following 
conditions: 

E.  agreed  to  deduct  from  tlie 
gross  receipts  a  specified  sum  to 


WHEN    JOINT   VENTURE 


189 


Where  a  joint  venture  or  copartnership  is  created  for 
the  exploitation  of  literary  works,  the  loss  of  prestige  in 
the  business  of  one  ot  the  partners  is  a  vahd  cause,  it 
would  seem,  for  a  dissolution.-" 

The  joint  venturers  are  bound  to  use  the  utmost  of  good 
faith  toward  each  other. -''^ 


be  applied  to  his  own  uses  and 
from  the  balance  pay  for  insur- 
ance, taxes,  cost  of  theatre  license, 
advertising,  labor  employed  and 
other  incidental  expenses  neces- 
sary to  the  operation  of  the 
theatre  and  pay  to  R.  a  specified 
sum  per  year  and  at  the  end  of 
the  year  pay  to  R.  one-half  of 
the  surplus  profits.  If  upon  the 
termination  of  the  lease  the  net 
receipts  proved  insufficient  to 
make  the  above  payments  then 
the  entire  net  receipts  were  to  be 
paid  to  R.,  less  a  specified  sum 
per  month  to  be  retained  by 
E. 

Held  not  to  create  a  co-partner- 
ship. See  also:  Atchison-Ely  v. 
T/(omrt.s  (1905),  104  A.  D.  (N.  Y.) 
3GS;03N.  Y.  Supp.  093. 

2'«  Waite  V.  Aborn  (1901),  60 
A.  D.  (N.  Y.)  521;  69  N.  Y. 
Supp.  967.  Plaintiff  and  de- 
feiulant  entered  into  a  copartner- 
ship for  a  specified  period  to  con- 
duct the  business  of  "making 
productions  of  operas,  extrava- 
ganzas  and   for   general   amuse- 


ment purposes."  Plaintiff  was 
to  have  charge  of  the  business 
of  the  enterprise  and  defendant 
of  the  artistic  branch.  Ildd  that 
a  complaint  asking  for  a  dissolu- 
tion of  the  partnership  because 
the  carrj'ing  on  of  the  business 
had  become  impracticaljle  on 
account  of  the  bad  reputation 
acquired  by  defendant  in  the 
theatrical  world  and  that  its 
continuance  could  not  be  ef- 
fected .save  with  loss,  stated  a 
cause  of  action. 

^1*  Selwyn  cfc  Co.  v.  Waller  et  ano. 
(1914),  212  N.  Y.  507;  106  X.  E. 
321.  Under  an«  agreement  for 
the  production  of  a  play  and  the 
sharing  of  profits  and  losses  in- 
cluding the  payment  of  royalties 
to  the  autliors,  one  of  the  jxirties 
to  the  enterprise  was  held  bound 
to  disclose  to  his  associate  the 
fact  that  he  had  previously  ac- 
quired from  the  authors  a  one- 
fourth  interest  in  such  royalties. 
Parties  about  to  engage  in  a 
joint  venture  whether  as  partners 
inter  sese  or   not  owe   to  each 


190  THE    LAW   OF   MOTION   PICTURES 

Section  63. — Royalties  in  addition  to  salary. 

Contracts  of  employment  occasionally  provide  for  com- 
pensation of  the  actor  who  poses  for  motion  picture  com- 
panies by  salary  and  royalties  based  upon  the  earnings  of 
the  picture.^^^ 

If  the  contract  is  silent  as  to  the  period  during  which 
such  royalties  are  to  be  paid,  the  actor  is  nevertheless  en- 
titled to  them  even  where  his  contract  of  employment  has 
expired  by  Umitation;  and  his  right  to  such  royalties  con- 
tinues as  long  as  the  picture  is  exploited. 

He  may  not,  however,  compel  the  producer  to  exhibit 
the  film  in  which  he  has  posed.  A  failure  to  exploit  the 
picture  merely  relegates  the  actor  to  his  remedy  at  law 
for  damages  for  the  breach,  with  the  difficulty  of  estab- 
lishing some  basis  upon  which  damages  may  be  awarded. ^^^ 

Section  64. — Law  governing  validity  of  contract. 

Where  a  contract  is  made  in  a  foreign  jurisdiction,  but 
is  to  be  wholly  performed  within  the  United  States,  the 
interpretation  and  validity  of  the  contract  will  generally 
be  subject  td  review  by  the  American  courts.  And  the 
courts  will  not  be  ousted  of  jurisdiction  by  the  contract 
of  the  parties  between  themselves. ^^^ 

other  the  utmost  good  faith  and  (N.  Y.)  260,  containing  a  valu- 

the  most  scrupulous  honesty.  able  discussion  of  the  method  by 

2'"  Drc.s.s7er    v.    Keijslone    Film  which  future  i)rofits  may  be  esti- 

Co.   (1915),  N.  Y.  Law  Journal,  mated  as  to  motion  pictures. 

Aug.  5th.  For  additional  cases,  see  Sec- 

^^'' Benyaknr  v.   Schcrz   (1905),  tion  49. 

103  A.  D.  (N.  Y.)  192.    See  also:  ='^  Eiigd  v.  .S7/ (//;(•//  (1915),  KiO 

Levison  v.  Oes  (1917),  98  Misc.  Ai)p.  Div.  (N.  Y.)  394;  151  N.  Y. 


CONTRACT    LABOR   AND   EXCLUSION    LAWS  I'Jl 

In  general,  the  contract  niubt  be  valid  in  the  place  of 
its  performance. 

^\^lere  a  booking  agency  conducting  a  business  from 
its  head(iuarters  in  Chicago,  had  contracted  to  provide 
troupes  for  theatres  in  Tennessee,  it  was  held  that  since 
it  had  not  complied  with  the  laws  of  that  state,  it  could 
not  recover,  as  performance  was  held  to  be  within  that 
state.-'' 

Section  65. — Contract  labor  and  exclusion  laws. 

Under  the  Federal  statutes  a  contract  made  with  an 
alien  to  jDerform  labor  or  services  within  the  United  States 
or  its  territories  previous  to  the  immigration  or  unporta- 
tion  of  such  person  into  the  United  States  is  void,  and 
any  person,  firm  or  corporation  which  assists  or  encourages 
such  inmiigration  or  importation  is  guilty  of  a  crime  and 
is  subject  to  heavy  penalties. "° 

Supp.  593.    The  contract  between  Co.  (1914),  211  X.  Y.  346;   105 

the   parties   i)rovicle(I   that:   "In  N.  E.  653;  Lorenz  v.  Bartuschck, 

ca.so  of  a  dispute,  both  contract-  City  Court  of  X.  Y.,  Xo.   116. 

ing  parties  agree  to  submit  to  Judgment  Roll  filed  May  18, 1916. 

the   jurLsdiction    of   the    Vienna  ^^'^  Albert  v.   Interstate  Amuse- 

courts."  rnerU    Co.     (1913),    161    S.    W. 

IIvl'l  that  such  provision  was  (Tenn.)  488. 

not  exclusive,  and  that  the  courts  Oti  the  question  whether  a  phrase 

would  not  look  with  favor  upon  of  limitation  relates  to  all  the  pre- 

atteinpts  to  oust  them  of  juris-  ceding  terms  or  modifies  the  term 

diction.  immediately  preceding  such  phrase 

"It  is  entirely  plain  that  such  sec:  Ilodkin^  v.  McDonald  (1907), 

agreements    should    be    strictly  123  Mo.  App.  566;  100  8.  W.  50S; 

construed    and    should    not    be  State  v.  Scaffer  (1905),  95  Minn, 

extended  by  implication."  31 1;  104  X.  W.  139. 

Mcac/iem  v.  Jamestown  li.  IL  --"  Compiled     Statutes    of    the 


192 


THE   LAW   OF   MOTION    PICTURES 


These  statutes,  however,  have  been  strictly  construed 
and  it  has  been  held  that  only  manual  unskilled  laborers 
are  intended  to  come  within  the  prohibition,--^  and  the 
making  of  contracts  with  actors,  directors  or  skilled  me- 
chanics would  not  be  a  violation  of  the  statute. ^-^ 

Nor  would  a  Chinese  actor  be  excluded,  since  he  has 
been  held  to  be  no  "laborer"  under  the  exclusion  laws.^^^ 

Section  66. — Performance  in  unlicensed  theatre. 

An  actor  who  performs  in  an  unHcensed  theatre  is 
estopped  from  recovering  for  his  services,  and  the  owner 
of  such  theatre  is  likewise  powerless  to  enforce  a  contract 
to  which  he  is  a  party.  ^^^ 


United  States  (pub.  1913),  Sec- 
tions 4245, 4246, 4248, 4250, 4251. 

"1  United  States  v.  Gay  (1899), 
95  Fed.  (C.  C.  A.)  226. 

222  United  States  v.  Thompson 
(1889),  41  Fed.  (C.  C.)  28;  United 
States  V.  Edgar  (1891),  45  Fed. 
(C.  C.)  44;  aff'd  48  Fed.  (C.  C.  A.) 
91. 

223 /2e  Ho  King  (1883),  14  Fed. 
(C.  C.)  724.  The  relator,  Ho 
King,  wa.s  a  Chinese  actor.  Land- 
ing at  Portland,  he  was  detained 
under  the  Exclusion  Law.  A  writ 
of  habeas  corpus  issued,  and  it 
was  held  that  an  actor  or  theatri- 
cal performer  was  not  a  "la- 
borer" under  that  Act,  and  that 
he  could  come  and  go  at  ple;isure. 

"*Levy  V.  Yates  (Eng.)  (1838), 


8  Ad.  &  El.  129;  35  E.  C.  L.  352. 
Where  the  owner  of  a  theatre  has 
not  obtained  a  license  as  required 
by  law,  a  contract  made  between 
himself  and  a  theatrical  company 
through  a  booking  agency  can-: 
not  be  enforced. 

De  Begnis  v.  Armistead  (Eng.) 
(1833),  25  E.  C.  L.  47;  10  Bing. 
107.  The  contract  of  a  theatre 
owner  was  held  unenforceable 
because  of  his  failure  to  comply 
with  the  law. 

As  to  what  constitutes  an  illegal 
contract  for  performance  at  a 
theatre.  See  also:  Eiving  v.  Os- 
baldiston  (Eng.)  (1837),  2  My.  & 
C-r.  53;  Gallini  v.  Lfdnnie  (Eng.) 
(1793),  5  Term  Rep.  212;  (hay  v. 
The    Oxford    (iMig.)     (1905),    21 


CONTRACTS   FOR   TRANSPORTATION — DAMAGES        193 

But  the  actor  who  so  performs  must  have  actual  notice 
of  the  fact  that  his  perfonnance  is  unlicensed.  The  dis- 
tinction is  made  between  ignorance  of  the  law  and  ig- 
norance of  a  fact;  and  the  want  of  notice  on  the  actor's 
part  in  this  ease  would  be  ignorance  of  a  fact  only,  and 
would  not  bar  a  recovery.--^ 

From  the  foregoing  it  may  be  concluded  that  a  dis- 
triliutor,  who  has  contracted  for  film  rental  with  an  ex- 
hibitor who  has  failed  to  secure  the  proper  license  from 
the  authorities,  may  recover  damages  for  the  breach,  pro- 
viding he  is  unaware  of  the  exhibitor's  derelictions.  In 
deahng  with  the  exhibitor  he  is  not  bound  to  make  any 
special  inquiries,  as  he  may  be  permitted  to  assume  that 
the  theatre  is  Ucensed.  That  presumption  exists  in 
law."« 

Section  67. — Contracts  for  transportation — damages. 
When  a  common  carrier  undertakes  the  transportation 

T.  L.  II.  664;  aflf'd  22  T.  L.  R.  that    the   performance   was   un- 

684;  Scott  v.  McSaughlon  (Eug.)  licensed  he  was  entitled  to   re- 

(I90S),  Times,  Nov.  25th.  cover,  and  defendants  would  not 

"'•  Roys  y.  Johnson  ct  al.  (l8oQ),  be    ix-nnitted    to    sustain    such 

7  (iray  (Ma.ss.),  162.     The  actor  defense,  having  themselves  been 

rendered  his  services  and  brought  guilty  of  the  unlawful  act. 

this  action  to  secure  comi>en.si-  --'^  Roihcdl  v.  Rcdge  (Eng.),  1 

tion  therefor.    Defendants  set  up  C.  &  P.  220;  11  E.  C.  L.  374.    The 

the  fact  that  the  plaintiff  acted  action    was    brought    against    an 

in  an  unlicensed  theatrical  exhi-  actor  for  breach  of  contract  for 

bition  and  not  entitled  to  com-  failure    to    appear.      Held    that 

pensation    as    the   giving   of   an  there    was    a    presumption    that 

unlicen.sed  theatrical  {>erformance  the    theatre    was    licensetl    from 

was    unlaN^'ful.       Ihhl     that     so  the  fact   that   jx'rformances   had 

long   as   plaintiff  did  not   know  been  going  on  uninterruptedly. 


194  THE    LAW   OF  MOTION   PICTURES 

of  an  actor  and  his  scenery,  the  carrier  is  not  prima  facie 
charged  with  any  unusual  degree  of  responsibility.  To 
hold  the  company  liable  for  neglect  or  delay,  it  must  be 
established  that  a  contract  existed  by  which  the  company 
was  fully  apprised  of  all  the  facts  in  order  that  it  may 
be  said  that  the  loss  of  profits  of  the  actor  was  within  its 
contemplation.  Such  a  contract  is  not  proven  merely  by 
showing  that  the  actor  bought  a  ticket;  more  than  that 
is  required. 2-^ 

But  where  such  a  contract  is  proven,  it  becomes  im- 
portant to  determine  whether  the  actor  may  prove  and 
recover  damages  including  the  profits  he  might  have 
made  had  he  been  able  to  perform.  In  New  York  the 
rule  seems  to  be  that  such  damages  are  not  incidental  to 
and  proximate  to  the  injury,  and  may  not  be  proven.--^ 

227  Southern  Ry.  v,  Myers  (1898),  raony  in  reference  to  the  specula- 

87  Fed.  (C.  C.  A.)  149.    An  ac-  tive  profits  which  the  passenger 

tor   was    injured    by    the    over-  might  have  made  if  he  had  been 

turning  of  a  sleeping-car.     "In  safely  carried  through  on  schedule 

the  absence  of  a  definite  contract  time." 

for  carriage  to  a  given  point  by  ^"^  Brown  v.  Weir  (1904),  95 
a  given  time,  with  such  reasons  A.  D.  (N.  Y.)  78;  88  N.  Y.  Supp. 
for  its  making  as  would  naturally  479.  Plaintiff,  an  actress,  dehv- 
lead  the  agent  of  the  carrier  to  ored  a  trunk  containing  all  of  her 
contcnii)Iate  the  profits  the  pas-  theatrical  costumes  to  the  Atlains 
senger  expected  to  realize,  it  is  I'Apress  Co.  for  transmission. 
clear  that  the  damage  claimed  The  trunk  was  not  delivered  for 
for  the  failure  to  realize  such  a  period  of  ten  days  because  of 
profits  is  too  un(;ertain  and  re-  dispute  as  to  charges,  the  com- 
mote, and  that,  until  competent  pany  having  demanded  an  im- 
proof  tending  to  show  such  con-  proper  amount.  Held  that  plain- 
tract  was  offered  and  admitted,  tilT  could  not  recover  as  damages, 
it  wa.s  error  to  admit  any  testi-  lo.ss  of  earnings  during  the  period, 


POWER   OF   company's   OFFICER   TO    CONTRACT       195 


But  ill  Illinois  the  courts  have  held  otherwise;  -^  and  the 
rule  in  that  jurisdiction  seems  to  be  in  accord  with  the 
dicta  of  the  Federal  court  in  Southern  Railway  v.  Myers. 

Section  68. — Power  of  company's  officer  to  contract — 
agency. 
A  contract  of  employment  with  an  actress  has  been  held 
valid  when  signed  by  the  president  and  general  manager 
of  the  company. '-^°  So  too,  where  the  director-general  of 
a  traveling  show  extends  a  contract  for  an  additional 
season.-'^ 


first,  because  she  failed  to  make 
rea.sonable  exertions  to  make  tlie 
injury  as  light  as  possible,  and 
secondly  because  damage  for 
breach  of  contract  was  only  that 
whicii  was  incidental  to  and  was 
directly,  caused  by  the  breach, 
antl  might  reasonably  be  pre- 
sumeil  to  have  entered  into  the 
contemi)lation  of  the  parties. 

"'Illinois  CetUral  v.  Byrne 
(1903),  205  111.  9;  68  X.  E.  720. 
Suit  to  recover  damages  for 
failure  to  haul  car  loaded  with 
scenery  and  theatrical  property. 
It  was  claimed  that  by  reason  of 
such  failure  appellee  mis.scd  an 
engngcnuMit  whicli  hail  been  ad- 
vertised and  for  which  tickets 
had  been  sold. 

Held  that  it  was  proper  for  the 
jury  to  consider  the  nature  of 
the    plaintilT's   business   and    his 


profits  for  a  reasonable  period 
next  preceding  the  time  when 
the  contract  was  violated. 

■^"King  v.  [Vill.  J.  Block  Am. 
Co.  (1908),  115  N..Y.  Supp.  243; 
aff'd  132  A.  D.  (X.  Y.)  925;  116 
X.  Y.  Supp.  1139.  It  is  within 
the  implied  powers  of  the  presi- 
dent and  general  manager  of  the 
defendant  to  bind  the  defendant 
in  the  employment  of  an  actress. 

-"  Kddi/  V.  America 71  Amuse- 
ment Co.  (1913),  132  Pac.  (Cal.) 
8.3.  .\  person,  having  charge 
generally  of  the  defendant's  trav- 
eling show  having  the  title  of 
director  general  and  having  the 
authority,  when  authorizeti  in 
writing  by  the  general  manager 
of  the  defendant  to  emplDy  and 
discharge  artists  and  who  em- 
ployed plaintifT  for  one  .-reason 
may  bind  the  defendant  in  ex- 


196 


THE    LAW   OF   MOTION   PICTURES 


But  it  has  been  held  that  the  president  of  a  theatrical 
company  could  not  appoint  a  general  business  manager 
without  the  consent  of  the  directors,  and  that  the  business 
manager  did  not  have  the  inherent  power  to  engage 
performers  for  a  year.-^- 

A  booking-agent  may  contract  within  his  apparent 
authority,  and  secret  instructions  are  not  binding  upon 
third  parties  with  whom  he  contracts.-''^ 

And  a  contract  signed  by  a  manager  will  make  him 
personally  liable  if  there  is  nothing  in  the  body  of  the 
contract  to  indicate  that  the  contract  is  made  with  his 
principal.-^* 


tending  the  employment  agree- 
ment for  an  additional  season. 

See  in  this  connection:  Arm- 
strong V.  Majestic  Motion  Picture 
Co.  (1914),  87  Misc.  (N.  Y.)  141; 
149  N.  Y.  Supp.  1039. 

^^'  Vogel  V.  *S^.  Louis  Museum 
(1880),8Mo.  App.  587. 

"3  Interstate  Ajnusemcnt  Co.  v. 
Albert  (1913),  161  S.  W.  (Tcnn.) 
488.  Held  that  plaintifY,  who 
operated  a  booking-agency  in 
Chicago  was  the  agont  of  the  de- 
fendants, who  operated  a  theatre 
in  Tennessee. 

Bergere  v.  Parker  (1914),  170 
S.  W.  (Texas)  80S.  Held  that 
where  a  person  was  held  out  as 
defendant's  hooking  ag(!nt,  pri- 
vate instructions  to  such  agent 
were  not  binding  upon  parties 
who  without  knowledge  of  such 


instructions  contracted  with  de- 
fendant through  the  agent  and 
that  his  acts  were  within  his  ap- 
parent authority. 

""Crau  V.  McVicker  (1874),  8 
Biss.  7;  10  Fed.  Cas.  No.  5,708. 
The  lessee  of  a  theatre  was  de- 
scribed as  "M.  G.,  representing 
Messrs.  C.  A.  C.  &  Co.,  manager 
of  the  A.  0.  B.  Co.,"  and  the 
contract  stated  that  he,  Grau, 
was  to  have  the  i)rivilege  of  giv- 
ing a  certain  number  of  per- 
formances. One  of  the  clauses 
provided:  "The  said  Maurice 
Grau,  in  consideration  of  the 
above,  agrees  to  pay  to  the  said 
McVicker."  Held  that  M.  G. 
was  liable^  as  principal  and  that 
the  words  added  to  his  name 
were  merely  words  of  description. 

B.  F.  Siurlevanl  Co.  v.  Fireproof 


COSTUMES 


197 


Where  the  phiintifT  had  contracted  as  "The  Redpath 
Lyceum  Bureau"  but  brought  suit  in  the  name  of  Geo.  H. 
Hathaway,  the  real  party  in  interest,  it  was  held  that  he 
could  pr()])(>rly  do  so.-^^ 

Section  69. — Costumes. 

While  stock  costumes  for  the  company  are  usually 
rented,  in  more  elaborate  productions  of  ])lays  and  motion 


Film  Co.  (1915),  216  N.  Y.  199; 
110  N.  E.  440.  "When  an  offer, 
proposal  or  contract  is  expressed 
in  dear  and  explicit  terms,  mat- 
ter printed  in  small  type  at  the 
top  or  bottom  of  the  office  sta- 
tionery of  the  writer  where  it 
is  not  easily  seen,  which  is  not 
in  the  body  of  the  instrument  or 
referred  to  therein,  is  not  neces- 
sarily to  be  considered  a  part 
of  such  offer,  proposal  or  con- 
tract." 

Cobb  V.  Knapp  (1877),  71  N.  Y. 
348.  "There  is  no  hardship  in 
the  rule  of  liability  against  agents. 
They  always  have  it  in  their  own 
power  to  relieve  themselves,  and 
when  they  do  not,  it  must  be 
presumed  that  they  intend  to 
be  lial)le." 

Meyer  v.  Redmiutd  (1912),  205 
N.  Y.  478;  98  N.  E.  906.  De- 
fendants were  auctioneers,  acting 
ami  presumably  known  to  be 
ueting  as  agents.     Vet  the  court 


held  that:  "Even  where  he  di.s- 
closes  the  name  of  his  principal, 
if  he  (the  agent)  signs  a  written 
contract  in  his  own  name  merely, 
which  contract  does  not  show 
upon  its  face  that  he  was  acting 
as  the  agent  of  another,  or  in 
an  official  capacity  in  behalf  of 
the  Government,  he  will  be  per- 
sonally bound  thereby." 

^^^  Hathaway  v.  Sabin  (1889), 
61  Vt.  60S;  18  Atl.  188. 

See  also:  Stuart  v.  Smith  (1895), 
68  Fed.  (C.  C.)  189.  Where  an 
officer  of  a  corporation  was  held 
not  liable  for  the  acts  of  the  cor- 
porati«jn  when  done  without  his 
consent;  and  McDonald  v.  Hearst 
(1899),  95  Fed.  (C.  C.)  656. 

On  the  question  whether  the  pro- 
prietor of  a  theatre  is  liable  for  the 
act  of  his  manager  in  refimng  to 
permit  an  officer  to  enter  the  theatre 
to  serve  legal  process  upon  an  actor 
see:  Paulton  v.  Keith  (1901),  23 
R.  I.  164;  49  Atl.  635. 


198  THE    LAW   OF   MOTION    PICTURES 

pictures,  these  costumes  must  be  made  up  specially.  It 
is  the  custom  to  have  plates  prepared  by  the  designer  of 
the  costumes,  and  these  plates  are  furnished  to  the  cos- 
tumer. 

In  a  case  where  the  costumer,  an  Enghsh  resident,  had 
himself  prepared  and  designed  the  plates  for  costumes 
to  be  used  in  the  defendant's  production,  it  was  held  that 
he  had  fully  performed,  and  judgment  in  his  favor  was 
sustauied.-^^ 

Section  70. — Enticement  of  actor. 

Because  of  the  great  competition  existing  between 
producers  to  secure  the  services  in  the  making  of  motion 
pictures  of  actors  and  actresses  of  established  reputation, 
one  motion  picture  producer  frequently  will  attempt  to 
secure  the  services  of  an  actor  who  has  contracted  to  per- 
form vdih  his  competitor.  It  is  important  for  him  to 
know  how  far  he  may  go  in  inducing  the  artist  to  leave  his 
competitor's  employ  without  committing  an  actionable 
wrong. 

His  competitor  may  have  expended  large  sums  of 
money  and  assumed  obUgations  in  reUance  upon  liis 
contract  with  the  actor. 

It  has  been  generally  held  in  this  country  that  where 
the  breach  is  induced  solely  by  argument  and  persuasion 
and  no  false  representation  is  made,  the  producer  whose 
contract  has  been  breached,  has  no  remedy  against  his 

2"  Anderson  v.  Lang  (1914),  56  former  w:i.s  coniinissioned  to  draw 

Pa.  Sup.  Ct.  183.    Phiintiff  wa,s  u  |)hites   for   designs    of    costumes, 

dosij^nor   of   theatrical    costumes  Held  that  lie  liad  fully  performed 

and  defendant  a  playwright.    The  and  was  entitled  to  recover. 


ENTICEMENT   OF   ACTOR  ]\i\) 

competitor.  He  is  left  to  liis  remedy  against  the  actor 
for  damages  for  the  breach  of  the  contract. 

If  the  actor,  however,  has  been  induced  to  breach  liis 
contract  by  false  representations,  by  fraud  or  by  force 
or  coercion,  the  competitor  has  committed  a  wrong  for 
which  he  is  accountal)lc  to  the  producer.  The  motive  of 
the  person  enticing  tlie  servant  away  is  inmiaterial. 

The  law  is  stated  in  a  recent  case  as  follows: 

"The  gist  of  the  WTong  lies  in  overpowering  or  circum- 
venting the  freedom  of  will  and  the  intent  of  the  one 
obligated  to  perform  as  distinguished  from  procuring 
him  by  fair  means  to  elect  not  to  perform." 

The  wronged  party  may  in  any  case  where  the  contract 
has  been  breached  by  false  representations,  fraud,  force 
or  coercion,  maintain  an  action  at  law  against  the  \\Tong- 
doer  for  his  damages. 

Wliere  the  services  of  the  artist  are  unique  and  extraor- 
dinary and  the  producer's  damages  irrcparal)le  the  courts 
have  gone  one  step  fm-tlier  and  permitted  liim  to  go  into 
equity  to  enjoin,  not  only  the  actor,  but  the  wrongdoer 
as  well  and  jirevent  such  wTongdoer  from  availing  himself 
of  the  services  of  the  actor. 

It  seems  that  there  are  only  three  cases  reported  in 
this  country  where  one,  contracting  with  an  actor,  has 
brought  an  action  against  a  thu'd  party  for  entice- 
ment. 

One  action  was  brought  at  law.  The  defendant  induced 
an  actor  who  had  contracted  to  perform  at  plaintiff's 
theatre  to  breach  the  contract  and  to  perform  at  defend- 
ant's theatre  upon  the  days  he  had  agreed  to  act  at 
plaintifT's  theatre.     The  court  held  that  the  motives  of 


200  THE    LAW   OF   MOTION    PICTURES 

defendant  in  inducing  the  actor  to  breach  his  contract 
were  immaterial  so  long  as  the  means  used  by  him  in 
inducing  the  breach  were  legal,  and  plaintiff  had  no  cause 
of  action  against  defendant. -^^ 

The  other  two  actions  were  brought  in  equity.  In 
Jesse  L.  Lasky  Feature  Play  Co.  v.  Fox  the  complaint 
alleged  that  plaintiffs  had  made  a  contract  with  an  actress 
of  unique  and  extraordinary  ability  whereby  she  had 
agreed  to  pose  for  plaintiffs  in  the  making  of  motion 
pictures  for  a  specified  period;  that  defendant  by  making 
false  representations  had  induced  her  to  breach  the  con- 
tract; that  the  false  representations  consisted  of  state- 
ments to  her  that  the  contract  between  plaintiffs  and  her 
was  void,  that  plaintiffs  had  no  intention  of  furnishing 
her  with  employment  as  provided  for  in  the  contract, 
that  plaintiffs  had  violated  the  agreement  in  failing  to 
make  the  necessary  preparations  for  posing  and  that  she 
was  under  no  obligation  to  perform  the  agreement.  The 
contract  contained  a  negative  covenant.  The  defendant, 
who  was  a  business  rival  of  plaintiffs,  had  caused  the 
actress  to  pose  for  a  motion  picture  subsequent  to  the 
making  of  the  above  mentioned  agreement  and  prior  to 
its  termination;  and  the  relief  asked  for  was,  among  other 
things,  f(^r  an  injunction  restraining  defendant  from  ex- 
hibiting the  photo-play  for  which  the  actress  had  posed. 

2"  Bourlier  Bros.  v.  Macauley  involves  legal  recognition  of  per- 

(1891),  91  Ky.  135;  15  S.  W.  60.  sonal    doiiiitiiun,    bordering    on 

"...  For,  to  enforce  u  doctrine  pure  servitqde,  wliicli  is  neitlier 

making  the  hirer  respf)nsible  for  in   harmony    witli    our    form    of 

breach  by  the  person  hired  of  a  government   nor   well    for    those 

previou.s   contract   witli    another  who  labor  for  .subsistence.    ..." 


ENTICEMENT   OF   ACTOR  201 

The  dcfondant's  demurrer  to  the  bill  of  complaint  was 
overruled.'-*'* 

The  latest  decision  is  that  of  Triangle  Film  Corporation 
V.  Artcraft  Piclurcs  Corporation  wherein  plaintiff  sought 
to  enjoin  the  defendant  from  employing  one  Hart  as  one 
of  its  motion  ])icture  actors. 

Hart  had  entered  into  a  contract  with  the  plaintiff  in 
which  he  agreed  to  render  to  it  his  exclusive  ser\'ices  as 
a  motion  jiicture  actor  for  a  number  of  years.  The  con- 
tract provided  that  one  Ince  was  to  supervise  all  the 
productions  made  with  the  participation  of  Hart.  It 
appeared  that  Ince  had  left  plaintiff's  employ  and  at  the 
time  of  the  commencement  of  this  action  was  associated 
with  the  defendant.  Hart  refused  to  remain  in  plaintiff's 
employ  after  the  withdrawal  of  Ince  and  had  accepted 
employment  from  the  defendant. 

The  theory  of  the  action  was  that  the  defendant  had 
combined  with  Ince  to  induce  Hart  to  leave  plaintiff's 
emi)loy  by  means  of  false  representations,  and  to  enter 
into  its  own  employ. 

Judge  Manton  denied  the  application  for  an  mjunction 
pendente  lite  upon  the  ground  that  Hart  was  not  obligated 
to  perform  under  his  contract  since  the  condition  of  his 
employment  was  that  Ince  should  act  as  director-general 

"8  Jcs.se  L.  Lasky  Feature  Play  in  the  case  of  other  contracts  the 

V.  Fox  (191G),  9.3  Misc.  (X.  Y.)  i)!irties  to   which   have  assumed 

364;  157  N.  Y.  Supp.  KX).     "In  mutual  obhgations.     For  induc- 

this  jurisdiction  interference  by  ing    the    termination    or    other 

a   stranger   with    a    contract    of  breach     of    such    a    contract    a 

service  by  any  cla.ss  of  employes  third   party  is  liable  only  when 

gives  rise  only  to  such  romcdii^s  he   has  been  guilty  of  unlawful 

as  exist  under  Uke  circumstances  means." 


202 


THE    LAW   OF   MOTION   PICTURES 


of  all  pictures  to  be  made  with  his  participation;  and  that 
since  no  action  could  be  maintained  against  Hart,  none 
could  be  maintained  against  the  defendant. -^^ 

Section  71. — Libel  of  actor. 

Members  of  the  theatrical  profession  will  be  permitted 
to  maintain  actions  for  libel  where  the  criticisms  of  their 
performances  are  instigated  through  mahce,  or  where  the 
critic  in  his  zeal  has  made  statements  which  are  untrue. 

Where  statements  were  made  concerning  a  public 
singer  that  he  falsely  claimed  to  be  the  owner  of  certain 
songs,  and  that  he  procured  the  giving  of  applause,  the 
court  held  the  defendant  guilty  of  a  libel. -^^ 


2"  Triangle  Film  Corp.  v.  Art- 
crafl  (1917),  D.  C.  U.  S.,  S.  D., 
N.  Y.,  July  31st.  "  If  Hart  could 
not  be  held  for  breach  of  contract, 
how  can  this  defendant  be  held 
for  inducing  Hart  to  break  his 
contract?" 

For  the  first  English  case  on 
this  subject  where  the  services  of 
an  actor  were  involved,  see:  Lumley 
V.  Gye  (Eng.)  (1853),  2  E.  &  B. 
216.  See  also:  Allen  v.  Flood 
(Eng.),  67  L.  J.  Q.  B.  112. 

And  for  more  recent  miscel- 
laneous ca,ses  in  enticement,  sec: 
Rogers  v.  Evarts  (I89I),  17  N.  Y. 
Supp.  261;  Johnston  Harvester 
Co.  V.  Mcinhnrdt  flSSO),  0  Abb. 
Ca.ses,  393;  IhJontf  v.  Behrman 
(1911),  148  A.  D.  (N.  Y.)  37; 
131    N.   Y.   Supp.   1083;   I'osner 


Co.  V.  Jackson  (1915),  166  A.  D. 
(N.  Y.)  920;  152  N.  Y.*  Supp. 
1105;  Angle  v.  Chicago  &  St.  Paul 
Rij.  Co.  (1893),  151  U.  S.  1;  U 
Sup.  Ct.  210;  Dr.  Miles  Medical 
Co.  V.  Park  &  Sons  (1911),  220 
U.  S.  373;  31  Sup.  Ct.  370. 

For  some  of  the  earlier  entice- 
ment cases  not  involving  the  ser- 
vices of  an  actor  see:  Benton  v. 
Pratt  (1829),  2  Wend.  {N.  Y.) 
3S6;  Walker  v.  Crown  (1871),  107 
Mass.  555;  Ashley  v.  Dixon 
(1872),  48  N.  Y.  430;  Boston 
Glass  Mfg.  v.  B i nncy -  ilS27),  4 
Pick.  (Mass.)  425;  Ncioman  v. 
Zacharij  (Eiit!;.)  (H)4(»),  Aleyn,  3; 
Hart  V.  Aldridge  (Eng.)  (1774), 
Cowp.  54;  Gunter  v.  Astor  (Eng.) 
(181 9),  4. J.  n.  Moore,  12. 

*'"  Dibdin     v.     'Swan     (Eng.) 


LIBEL   OF   ACTOR 


203 


In  another  case  \vlieie  the  performances  of  a  troupe  of 
j)ul)Hc  performers  were  referred  to  as  being  coarse,  farcical, 
wholly  without  merit  and  ridiculous,  it  was  held  that 
unless  malice  was  estal)lishcd  there  could  be  no  recovery.-^' 
A  reference  to  the  manners  of  an  actor  as  "ungentlemanly 
and  discourteous"  was  however  held  actionable. -'- 

As  the  reputation  of  an  actor  is  (l(>pendent  to  a  groat 
extent  upon  the  nature  of  the  pul)licity  given  to  him, 
improper  forms  of  advertisement  or  type  will  sustain  a 
cause  of  action  for  libel.  Thus  where  a  high  class  actor's 
name  was  billed  in  very  small  type  whereas  he  was  ac- 
customed  to  having  it  starred,   the  courts  permitted  a 


(1793),  1  Esp.  28.  "The  editor 
of  a  newspaper  may  fairly  and 
candidly  comment  on  any  place 
or  species  of  public  entertain- 
ment; but  it  must  be  done  fairly 
and  without  malice  or  view  to 
injure  or  prejudice  the  proprietor 
in  tlie  eyes  of  the  public.  If  so 
done,  liowever  severe  the  censure, 
the  justice  of  it  screens  tlie 
ochtor  from  legal  animadversion; 
but  if  it  can  be  proved  that  the 
comment  is  malevolent,  or  ex- 
ceeding the  bounils  of  fair  opinion 
then  such  is  a  libel  and  therefore 
actionable," 

To  the  same  effect:  Hart  v. 
Wall  (Eng.)  (1S77),  25  W.  H. 
373.  8ee  also:  (irccn  v.  Chapman 
(Kng.)  (1837),  4  Bing.  N.  C.  92; 
Morrison  v.  Iklchcr  (Eng.),  3 
F.  &  V.  (ill. 


■*^  Cherry  ct  al.  v.  Des  Moines 
Leader  (1901),  114  Iowa,  298;  86 
N.  W.  323. 

McQuire  v.  Western  Xews 
(Eng.)  (1903),  88  L.  T.  7.57.  Re- 
ferring to  certain  songs  delivered 
during  the  performance  of  a  play 
and  to  certain  dancing  therein 
a.s  "vulgar"  was  not  lield  to  be 
lil)elous.  See  also:  Thomas  v. 
Bradbury  (Eng.)  (190C),  95  L.  T. 
23;  Unwin  v.  Clarke  (Eng.) 
(190S),  Times,  March  31 ;  Murray 
V.  Walter  (Eng.)  (1908),  Times. 
May  6,  7,  8,  9. 

See  also:  Wood  v.  Sandow 
(Eng.)  (1914),Times,June2G,  30. 
The  pulilication  of  an  actor's 
picture  in  connection  with  an 
advertisement  is  not  ijjso  facto 
libelous. 

"'  Williams        v.        Davenport 


204  THE    LAW   OF  MOTION   PICTURES 

recovery;  ^^s  and  where  the  singer's  name  was  placed  third 
on  the  Ust  of  concert  singers  printed  on  the  handbills 
and  advertising,  the  court  held  that  that  was  calculated  to 
injure  the  plaintiff's  reputation  and  constituted  a  Hbel.^'*^ 
On  the  other  hand,  to  accuse  an  actress  of  being  in 
the  company  of  a  man  late  at  night  and  being  mixed  up 
in  a  quarrel  was  held  not  libelous  in  the  absence  of  special 
damage. -^^ 

(1890),  42  Minn.  393;  44  N.  W.  Renard  v.  Carl  Rosa  Opera  Co. 

311.  (Eng.)    (1906),  Times,  Feb.    15; 

^''Elen  V.  London  Music  Hall  Wade  v.   Waldon  (Eng.)    (1909), 

(Eng.)    (1906),  Times,  May  31,  S.  C.  571. 
June  1.  ^^^  Gerald  v.  Inter  Ocean  Pub. 

^'*  Russell    V.    Notcutt    (Eng.)  Co.  (1899),  90  111.  App.  205. 
(1896),  12  T.  L.  R.  195.    See  also: 


CHAPTER  IV 

THE    PRODUCER    (CONTINUED) 

His  Other  Employes 

Sec.  72.  Scenario  writer. 

73.  Director  and  other  employes. 

Section  72. — Scenario  writer. 

Tlic  professional  scenario  writer  is  a  new  figure;  he  is 
unique  to  the  motion  picture  industry,  and  it  is  rather 
difficult  to  define  with  any  reasonable  degree  of  accuracy 
the  pecuUar  rights  and  liabilities  involved  between  him- 
self, his  employers  and  third  persons. 

We  have  discussed  in  a  previous  chapter  the  scenario 
writer  who  is  employed  to  write  original  motion  pictures, 
and  the  author  who  writes  original  scenarios  and  sends 
them  in  for  sale,  confining  ourselves  principally  to  the 
rights  retained  or  transfernnl  in  the  scenario.^  But  it  is 
becoming  customary  for  th(^  film  producers  to  employ 
scenario  writers  whose  princijial  function  it  is  to  adapt 
novels,  plays  and  other  works  which  have  come  into  their 
control  for  representation  in  motion  pictures. 

Such  a  scenario  writer  has  no  independent  rights  in  the 
scenario,  as  such,  nor  does  he  secure  copyright  in  the 
motion  picture  reproduced  from  that  scenario.     He  is 

'  See  Section  4. 

205 


206  THE    LAW   OF   MOTION   PICTURES 

acting  as  an  intermediary  only,  and  while  he  creates 
something,  that  which  he  creates  belongs  to  his  employer 
and  not  to  him. 

The  above  is  subject  to  one  exception,  however,  for 
should  the  film  producer  multiply  the  scenario  in  copies 
for  sale,  and  should  he,  in  the  process  mutilate  it  to  any 
appreciable  extent,  the  scenario  writer  would  undoubtedly 
have  the  right  to  seek  redress,  as  this  would  be  an  invasion 
of  his  common-law  rights,  which  he  has  not  lost.-  Also, 
where  he  has  so  contracted,  he  may  enforce  the  display 
of  his  name  upon  the  picture  and  billing  matter.^ 

It  must  be  remembered,  however,  that  his  common-law 
rights  are  limited  to  the  scenario  alone. 

It  frequently  happens  that  a  scenario  writer  goes  out  of 
his  way  to  plagiarize  from  another  w8rk  or  picture,  to 
libel  another,  to  invade  a  private  right  or  to  write  that 
which  is  obscene  or  indecent.  In  such  case  the  rule  of 
respondeat  superior  apphes. 

Many  scenario  writers  have  adopted  the  system  of 
doing  independent  work  for  one  or  several  companies. 
They  are  usually  given  a  novel  or  play  and  told  to  turn 
it  into  a  scenario.  Where  the  contract  provides  that  no 
compensation  is  to  be  paid  for  the  scenario  until  the 
picture  is  actually  produced,  the  scenario  writer  may  not 
recover  until  there  is  an  actual  reproduction,  nor  may  he 
compel  such  a  reproduction. 

In  Canada,  it  was  held  in  Moraiig  v.  LcSucur  that  an 
author  who  sold  his  manuscript  to  the  publisher  without 

*  See  Section  12.  August  2r)th,  I\IiilI:in,  J.    Sec  ox- 

'  lircnnan  v.  Fox  Film  dorp.  corpt  from  opinion  under  Section 
(1010),     N.    Y.     Law    Journal,      73. 


SCENARIO   WRITER  207 

any  reservation  as  to  publication,  could  tender  back  the 
advance  royalties,  where  the  publisher  failed  to  publish 
the  work,  and  compel  a  re-assignment  of  the  same.  In 
that  case,  however,  the  author,  under  the  contract,  was 
to  receive  his  remuneration  in  royalties  based  only  upon 
the  actual  retail  sale  of  the  work,  and  this  was  an  element 
that  carried  great  weight  with  the  court  in  arriving  at  its 
conclusion. 

The  bench  was  divided,  three  to  two,  and  Judge  .Viiglin 
in  an  elaborate  dissenting  opinion  expressed  the  sounder 
doctrine  that,  unless  the  contract  especially  so  provided, 
the  publisher  was  under  no  obhgation  to  risk  his  money  in 
producing  the  work;  and  while  it  is  true  that  an  author 
sells  his  work  with  an  eye  to  the  enhancement  of  his 
reputation  and  fame  which  publication  would  bring  about, 
he  ought  to  expressly  contract  for  the  pubUcation  of  it, 
if  he  thinks  enough  of  himself  and  his  work.' 

It  would  follow  that  where  a  scenario  writer  sells  liis 
scenario  to  the  motion  picture  producer,   the  latter  is 

*Morang  &  Co.  v.  Le  Siicur  fendant  a  part  in  any  play,  but 
(1911),  45  Canadian  Sup.  Ct.  9.").  paid  him  the  stipuhUcd  salan-. 
See  excerpt  from  dissenting  opin-  The  defendant  becoming  tired 
ion  quoted  in  Section  28.  of  liis  inactivity  obtained  em- 
See  in  this  connection:  Fcchtcr  ployment  at  a  rival  theatre.  In  an 
V.  Montgomery  (Eng.)  (1863),  33  action  for  an  injunction  plaintiff 
Beav.  22,  wliere  an  actor  was  was  defeated,  the  court  hokling 
engaged  for  a  specified  period,  that  one  of  the  objects  of  the 
the  performances  of  tlie  artist  to  contract  was  to  enable  the  de- 
commence  several  weeks  after  fendant  to  appear  in  public; 
the  making  of  the  contract.  that  the  actor  was  paid  not  in 
When  the  time  for  the  j)erfonn-  terms  of  money  alone  but  in  op- 
ance  of  the  contract  aniveil,  the  portunity  to  apjx'ar  in  public,  and 
manager  refused  to  give  the  de-  to  acquire  reputation  and  fame. 


208  THE    LAW   OF   MOTION   PICTURES 

under  no  obligation  to  make  a  production  of  the  picture, 
unless  the  contract  especially  covenants  him  to  do  so. 

If  the  acceptance  of  the  work  is  contingent  upon  the 
satisfaction  of  the  producer,  the  latter  may  reject  the 
scenario  for  any  cause  he  sees  fit.^ 

Where  the  scenario  writer  leaves  the  employ  of  his 
company,  he  may  subsequently  make  use  of  any  and  all 
ideas  which  he  may  have  acquired  in  the  course  of  his 
employment.  He  may  even  go  to  the  same  sources  for 
information  and  ideas  which  he  had  made  use  of  while 
so  employed,  and  he  may  later  develop  them  in  any  way 
that  he  sees  fit — provided  that  such  sources  are  not  the 
property  of  his  former  employers.^ 

But  where  the  scenario  writer  has  reduced  to  wTiting 
while  in  such  employment,  any  ideas  whatsoever,  whether 
the  material  has  been  developed  in  the  form  of  scenario 
or  not,  such  WTitings,  whether  complete  or  in  unfinished 
narrative  form,  are  the  absolute  property  of  liis  former 
employers.'' 

The  writer  is  engaged  specifically  to  write  this  kind  of 
material,  and  it  is  well  settled  that  as  soon  as  the  material 

^Glenny  v.  Lacy  (1888),  1  For  additional  cases,  see  Sec- 
N.  Y.  Supp.  513;  Crawford  v.  tions  16  and  38. 
Mail  &  Express  Pub.  Co.  {1900),  <>  Peters  v.  Borst  (1889),  9 
163  N.  Y.  404;  57  N.  E.  616;  N.  Y.  Supp.  789;  reversed  142 
Peverly  v.  Poole  (1887),  19  Abb.  N.  Y.  62;  .36  N.  E.  814;  upon 
N.  Cas.  (N.  Y.)  271;  Kendall  v.  another  ground:  Colliery  En- 
West  (1902),  196  111.  221;  63  gineer  Co.  v.  United  Corresp. 
N.  E.  683;. Saxc  v.. S/!?i6cr/ (1908),  Schools  (1899),  94  Fed.  (C.  C.) 
57  Misc.  (N.  Y.)  620;  108  N.  Y.  152. 

Supp.  683;  Weaver  v.  Klaw  (1891),  '  T.  H.  Harms  v.  Stern  (1915), 

16  N.  Y.  Supp.  931.  222  Fed.  (D.  C.)  581. 


DIRECTOR   AND    OTHER   EMPLOYES  209 

comes  into  cxistenco,  and  takes  concrete,  tan^i'^le  form, 
it  becomes  the  property  of  the  one  who  lias  paid  him  for 
such  work.  If  be  attempts  to  use  the  sanie  tliereafter, 
he  is  as  nmch  of  an  infringer  as  a  stranger,  and  he  may 
be  restrained  and  punished.** 

Section  73. — Director  and  other  employes. 

Directors,  camera  men  and  other  employes  of  film 
companies  are  amenable  to  the  general  rules  governing 
master  and  servant.  Directors  in  particular  have  been 
recognized,  like  competent  actors,  as  being  artists  pos- 
sessing in  greater  or  lesser  degree  the  attributes  of  skill, 
taste  and  judgment,  and  as  such  their  rights  and  duties 
must  be  defined  in  accordance  with  the  rules  heretofore 
set  out  for  special,  unique  and  extraordinary  employes. 

For  example,  a  skillful  director  who  has  contracted  for 
a  definite  period  for  his  services,  jiiay  not  arbitrarily 
breach  his  contract;  if  he  does  so,  he  may  be  restrained. 

He  is,  for  many  purposes,  the  agent  of  the  company. 
Where  he  supervises  or  directs  the  production  of  a  libelous 
picture  he  becomes  personally  liable  as  a  joint  tort  feasor 
with  his  employer.^  Even  though  the  motion  picture 
producer  has  no  actual  knowledge  of  the  libel,  his  failure 
to  control  his  agent  would  be  eciuivalent  to  such  dis- 
regard of  the  rights  of  others  as  to  amount  to  intentional 

« See  Section  8.  Weil  v.   Xcrin,  1   Pa.   Sup.  Ct. 

^  Spooner  v.  Daniels  (1854),  22  Cixa.  03;  Kcyzor  v.  Nacman  (Eng.), 

Fed.  Cas.   (C.  C.)   No.   13,214a;  1  F.  &  F.  559;  Mecabe  v.  Jones 

Walts   V.    Fraser    (Eng.)    (is;i7),  (1S81),    10   Daly    (X.   Y.),   222; 

7  C.  &  P.  360;  Hunt  v.  Iknnell  Smith  v.    Ulley   (1890),  02  Wis. 

(1859),  10  X.  Y.   173;  Bruce  v.  133;  65  X.  W.  744. 
Reed   (1883),    101    Pa.    St.    40S; 


210 


THE    LAW   OF   MOTION   PICTURES 


wrong.  ^°  And  such  liability  would  seem  to  be  criminal 
as  well  as  civil.  ^^ 

And  where  a  director  has  placed  an  actor  in  a  dangerous 
part  wherein  he  sustains  injury  he  is  the  alter  ego  of  the 
employer  in  the  same  manner  as  the  foreman  or  superin- 
tendent of  a  shop.  The  rule  appUes  as  well  to  acts  of 
omission  as  to  acts  of  commission. 

He  is  ordinarily  vested  with  the  right  to  employ  and 
discharge  actors  and  other  employes.  But  he  has  no 
inherent  authority  to  engage  an  actor  for  a  year  and 
thereby  bind  the  company.  ^^ 

He  is  entitled  to  a  reasonable  amount  of  publicity  where 
he  has  contracted  therefor,  and  in  that  event  may  insist 
that  the  display  advertising  and  billing  matter  have  his 
name  printed  thereon. ^^    Where  his  name  is  so  advertised, 


'"  Danville  Press  v.  »Harnson 
(1901),  99  III.  App.  244. 

^^  Slate  V.  Mason  (1894),  26 
Oregon,  273;  38  Pac.  130;  Ickes  v. 
Stale  (1898),  8  Ohio  Circ.  Dec. 
442;  Com.  v.  Kneeland  (1834), 
Thach.  Crim.  Cas.  (Mass.)  34G; 
aff'd  20  Pick.  200;  Clay  v.  People 
(1877),  80  111.  147. 

1-  Vogel  V.  Si.  Louis  Museum 
(18S0),8Mo.  App.  587. 

»'  Drenan  v.  Fox  Film  Corp. 
(1910),  N.  Y.  Law  Journal, 
Aug.  25.  "The  plaintiff  who  i.s 
the  author  of  a  j)hotoplay  known 
a.s  'The  Daughter  of  the  Gods' 
scok.s  to  enjoin  the  exhibition  of 
it  by  the  defendant  without  an 


accompanying  ascription  to  him 
of  the  authorship,  and  without 
giving  prominent  publicity,  in 
the  various  ways  customarily 
employed  in  the  motion  picture 
business  to  advertise  photopla3's, 
to  the  fact  that  the  plaintifT  'is 
the  originator,  author  and  pro- 
ducing director  of  such  photo- 
play.' The  plaintifT  was  em- 
ployed by  the  defendant  in 
January,  1915,  at  a  weekly  salary 
to  write  for  it  scenarios  and  direct 
the  production  of  motion  picture 
or  photoplaj's.  The  engagement 
was  oral,  for  no  definite  period, 
and  contained  no  provision  to 
insure  to  the  plaintilT  the  pub- 


DIRECTOR    AM)    OTHER   EMPLOYES 


211 


licity  fi)r  liimsclf,  upon  the  im- 
portance of  which  he  lays  such 
stress  in  his  coinphiint  and  in 
his  moviiiK  papers  upon  this 
apphcation,  althoup;h  he  states 
that  shortly  before  entering  the 
einph)y  of  the  defendant  he 
severed  liis  c(jiuioc(ion  with  per- 
sons conducting  a  similar  busi- 
ness for  the  reason  that  they 
denied  to  liiin  the  puljHcity  ho 
felt  he  was  entitled  to.  In  July 
of  this  year  the  plaintilT  volun- 
tarily severed  his  connection 
with  the  defendant  by  resigna- 
tion. Although  I  have  no  dis- 
position to  pass  upon  the  merits 
of  the  dispute  in  advance  of  the 
trial,  which  presumably  will  bring 
out  the  true  and  full  situation, 
I  think  it  is  at  least  doubtful 
whether  any  engagement  that 
may  possibly  be  spelt  out  by 
defendant's  conduct  and  the  cu.s- 
tom  of  the  business  to  advertise 
plaintiff's  connection  with  the 
plays  he  wrote  and  produced 
while  in  the  defendant's  employ 
may  hold  good  and  continue 
after  a  severance  of  the  relation 
of  employe  and  employer.  If  the 
defendant  were  to  be  bound  for 
all  time  to  advertise  the  plaintilT 
in  connection  with  the  plays  he 
wrote  while  in  the  pay  of  the  de- 
fendant, it  is  more  than  strange 
that     the     plaintilT    should     not 


have  miwJe  such  advertisement 
an  express  condition  of  the  em- 
ployment, and  procured  the  pro- 
tection of  a  written  instrument, 
particularly  when,  as  he  says,  he 
left  his  former  employer  for  the 
sole  reason  that  he  was  not 
sufficiently  advertised.  Many 
grounds  of  opj)osition  are  urged 
by  the  defendant,  among  them, 
that  even  if  it  should  be  thought 
from  a  reading  of  the  papers 
submitted  upon  this  motion,  that 
the  i)laintifT  may  have  contrac- 
tual rights  for  the  breach  of 
which  he  should  be  entitled  to 
suitable  redress,  it  would  be  im- 
possible in  such  a  ca.se  as  this 
for  a  court  of  equity  suitably 
and  appropriately  to  exercise  its 
powers.  While  the  proper  en- 
forcement in  equity  of  the  plain- 
tiff's rights,  if  it  be  ultimately 
decided  that  he  has  any, 
may  present  certain  difficul- 
ties, I  am  not  prepared  to  say 
that  an  appropriate  scheme  of 
relief  could  not  be  worked  out; 
but  it  is  not  ncce.«;sary  for  me  to 
pa.ss  upon  that  question.  I  rest 
my  decision  upon  the  belief  that 
the  ultimate  success  of  the  plain- 
tilT is  too  doubtful  to  warrant  a 
mandatory  injunction  which  may 
give  to  the  plaintilT  in  advance  of 
the  trial  a  considerable  meivsure 
of  the  relief  he  might  be  entitled 


212 


THE    LAW    OF   MOTION   PICTURES 


but  he  has  not  directed  the  picture,  he  may  enjoin  such 
use  of  his  name.^^  Where  he  has  directed  a  picture,  and 
the  producer  or  distributor  places  another  name  thereon, 
he  may  restrain  the  production.  ^^ 

The  director,  being  responsible  to  his  employer  for  the 
proper  filming  of  the  picture,  is  given  wide  discretionary 
powers.  He  may  alter  the  sequence  of  the  taking  of 
scenes;  he  may  make  changes  in  the  scenario,  eliminate 
scenes,  change  about  the  cast  and  in  general,  supervise 
and  conduct  the  production  to  meet  with  his  individual 
notion,  taste  and  judgment. 

The  director  cannot  be  delegated  by  the  producer  to  do 
other  work,  and  his  refusal  to  perform  work  other  than 


to  upon  making  out  his  case 
before  the  trial  court.  As  the 
condition  of  the  calendar  is  such 
that  a  trial  may  be  had  speedily, 
the  risk  of  damage  to  the  plaintiff 
is  not  in  my  judgment  sufficient 
to  require  what  would  in  effect 
be  a  determination  in  his  favor 
prior  to  the  taking  of  proofs. 
Motion  denied." 

'■'  The  "Mark  Twain"  Case 
(1883),  14  Fed.  (C.  C.).728.  "So, 
too,  an  author  of  acquired  reputa- 
tion, and  perhaps  a  person  who 
has  not  obtained  any  standing 
before  the  public  as  a  writer,  may 
restrain  another  from  the  iMil)lica- 
tion  of  literary  matter  purporting 
to  have  been  written  by  him, 
but  which  in  fact  was  never  so 
written.      In    other    words,    no 


person  has  the  right  to  hold  an- 
other out  to  the  world  as  the 
author  of  literary  matter  which 
he  never  wrote." 

Drummond  v.  Altemus  (1894), 
60  Fed.  (C.  C.)  338.  Here  de- 
fendant published  what  pur- 
ported to  be  a  series  of  lectures 
delivered  by  the  plaintiff  en- 
titled: "The  Evolution  of  Man; 
being  the  Lowell  lectures  de- 
livered at  lioston,  Mass.,  April, 
1893,  by  Professor  Drummond." 
The  court  restrained  iiim.  See 
also  Section  12. 

''' DcHvkker  v.  Stakes  (1015), 
108  A.  D.  (N.  Y.)  4r)2;  153  N.  Y. 
Supp.  lOfiC);  Croaks  v.  Pctler 
(Kug.)  (1800),  3  L.  T.  Rep. 
(N.  S.)  225.  See  also  Section 
12. 


DIRECTOR   AN'I)    OTHKR    i:.MFrX)YES  213 

such  within  the  scope  of  his  employment  is  not  grounds 
for  discharge.'^ 

He,  as  well  as  all  the  other  employes  of  the  producer 
will  be  restrained  from  disclosing  the  trade  secrets  of 
their  employer  to  a  rival,  in  the  same  manner  and  under 
the  same  conditions  as  in  other  commercial  pursuits.'^ 

'•  A^a.s7i   \-.  K riding  (189fl),  56  courts  on  this  subject  see:  DuPont 

Pac.    200;   afT'd    123   Cal.    xviii.  Powder  Co.    v.    Mnsland   (1917), 

F(ir    additional    cases    see:    Sec-  244  U.  S.  100;  Todd  Prolectogrnph 

tion  45.  Co.    V.     Hirf^chberg    (1917),    luO 

"  For  the  latest  expression  of  the  Misc.  (N.  Y.)  418. 


CHAPTER  V 

THE   DISTRIBUTOR  AND   THE   EXHIBITOR 

Sec.  74.  Distributor— in  general. 

75.  Exhibitor — in  general. 

76.  Advertising  matter,  programs,  bill-posters. 

77.  What  are  fixtures. 

78.  Replevin  of  film  and  machine. 

79.  Theatre  leases. 

80.  Theatre  a  nuisance. 

81.  Franchise  and  booking  agreements. 

82.  Benefit  performances — private  exliibitions. 

83.  Interstate  commerce. 

84.  Bankruptcy. 

85.  Libel. 

Section  74. — Distributor — in  general. 

It  has  become  a  practice  in  the  motion  pictm-e  industry 
to  have  separate  organizations  take  care  of  the  manufac- 
ture and  distribution  of  the  motion  picture.  A  number 
of  the  concerns  manufacturing  the  fihns  turn  o\'er  the 
finished  product  to  a  distributing  agency.  The  distribut- 
ing agency  is  usually  the  main  organization,  the  manu- 
facturing companies  being  subsidiaries  of  the  releasing  or 
distributing  company.  The  distributing  company  main- 
tains branches  in  the  principal  cities  of  the  country,  known 
in  the  trade  as  "exchanges"  tlirongli  wliich  ilio  motion 
pictures  are  rented  out  to  the  individual  ('xhibitors. 

One  of  two  methods  is  usually  followed  by  the  dis- 
214 


DISTRIBUTOR— IN    GENERAL  21o 

tributor  to  compensate  the  manufacturer  for  the  fihris. 
In  the  one  case  the  negative  of  the  film  is  sold  outright 
to  the  distributor  for  a  lump  sum,  usually  amounting  to 
the  actual  cost  of  production,  and  positive  prints  of  the  film 
are  sold  at  a  specified  ainomit  per  foot;  the  other  method 
is  to  have  the  producer  lease  the  positive  prints  of  the  film 
to  the  releasing  agency,  the  gross  receipts  being  divided 
between  the  two  u})on  a  fixed  percentage  basis.  The 
former  method  was  the  one  first  adopted  in  the  industry, 
but  the  latter  has  become  more  popular  in  the  past  few 
years  and  will  undoubtedly  ultimately  supplant  the  older 
method  entirely. 

That  is  true  especially  because  of  the  growing  custom 
of  forming  manufacturing  organizations  to  make  the  pic- 
tures of  a  single  star  and  giving  him  a  part  of  the  capital 
stock  of  the  company.  The  star,  being  a  stockholder,  will 
turn  the  films  over  to  a  releasing  company,  only  upon 
condition  that  a  share  of  the  receipts  are  returned  to  the 
company.  In  this  manner  a  profit  is  derived  from  the 
exploitation  of  the  film,  from  which  the  star  receives  a 
share  on  account  of  his  stock  holdings. 

Litigation  between  the  producer  and  the  releasor  is 
infrcciuent.  Their  interests  are,  as  a  rule,  closely  allied 
and,  as  the  control  of  each  one  is  in  the  same  group  of  men, 
all  disputes  between  them  are  usually  settled  intra  mura. 
Occasionally,  disputes  arise  which  reach  the  courts,  and 
the  questions  which  come  up  are  complicated  and  diflicult 
of  adjustment. 

In  the  case  of  GoJdburg  v.  Popular  Pictures  Corporation 
the  producer,  under  his  contract  with  the  distributor, 
made  for  and  tendered  to  it  a  negative  of  a  film.    Under 


216  THE    LAW   OF   MOTION   PICTURES 

the  contract  the  producer  was  to  receive  a  sum  equal  to 
the  actual  cost  of  the  manufacture  of  the  negative  plus  a 
percentage  of  the  gross  receipts  when  the  film  was  re- 
leased. The  distributor  failed  to  accept  or  pay  for  the 
film,  and  when  suit  was  brought,  the  court  was  at  a  loss 
to  understand  whether  the  action  was  upon  a  lease,  a 
sale,  or  a  joint  venture. 

After  a  careful  array  of  the  facts,  Judge  Greenbaum 
decided  that  the  complaint  should  be  based  upon  a 
breach  of  contract.  Thp  measure  of  damages  would  be 
solely  the  actual  cost  of  producing  the  picture.  The  per- 
centage of  the  gross  receipts  was  entirely  too  speculative, 
as  the  picture  had  not  been  exhibited  by  the  defendant 
Popular  Pictures  Corporation,  and  plaintiff  was  directed 
to  amend  his  complaint  accordingly.^ 

^Goldberg  v.  Popular  Pictures  It  lacks,  however,  all  the  essential 
Corp.  (1917),  N.  Y.  Law  Journal,  features  of  any  of  these  transac- 
April20.  Greenbaum,  J.:  "The  tions.  It  is  not  a  sale,  because 
subject-matter  of  the  contracts  the  title  in  the  production  is  re- 
upon  which  the  defendants  are  served  in  the  plaintiffs,  the  de- 
sought  to  be  held  is  the  produc-  fendant  having  merely  the  right 
tion  by  the  plaintiffs  of  a  feature  to  rent,  exhibit  or  otherwise  use 
motion  picture  to  consist  of  not  the  films  produced  by  the  plain- 
less  than  4,500  feet,  to  be  de-  tiffs.  It  is  not  altogether  a  lease, 
livered  on  or  before  a  fixed  date  because  it  is  in(l(>(inito  as  to  the 
to  the  defendants  Popular  Pic-  terms  of  duration,  and  it  obli- 
tures  Corporation,  who  will  be  gates  the  defendant  the  Popular 
referred  to  as  'the  defendant.'  Pictures  Corporation  to  the  per- 
The  legal  obligations  flowing  formance  of  {-(M-taiii  active  duties 
from  the  contracts  are  of  a  some-  or  obligations  in  handling  the 
what  composite  nature,  embody-  production.  The  total  amount 
ing  those  that  arc  pecnliar  to  a  of  what  may  be  termed  the 
sale,  a  lease  and  a  j(jint  venture.  'rentals'  to  be  paid  to  the  plain- 


DISTRIBUTOR — IN    fiKN'ERAL 


21' 


After  the  anientlinent  of  the  coinphiint  the  defendants 
interposed  answers  in  which  they  set   up  as  a  partial 


tiffs  is  dependent  in  fnc-t  upon  the 
gross  receipts  oljtained  by  the 
defendant  from  the  exhibition 
or  use  or  lease  of  the  pictures. 
By  the  terms  of  the  agreement 
the  compensation  or  rental  to  be 
paid  is  an  advance  payment  in  a 
single  sum,  equal  to  the  actual 
cost  to  the  plaintiffs  of  manufac- 
turing the  pictures,  not  exceed- 
ing, however,  the  sum  of  S14,(KX), 
plus  50  iK?r  cent,  of  the  gross 
receipts  obtained  by  the  defend- 
ant in  producing  the  pictures, 
after  the  defendant  shall  have 
first  reimbursed  itself  from  these 
receipts  to  the  extent  of  the  ad- 
vance payment.  Although  the 
contract  embodies  some  of  the 
substantial  features  of  a  joint 
venture,  nothing  is  stated  therein 
which  would  indicate  that  the 
parties  so  regarded  it,  and  upon 
tlie  argument  of  this  motion  no 
suggestion  was  made  by  either 
party  that  it  is  a  joint  venture, 
and,  besides,  it  lacks  the  element 
of  'profits.'  The  result  of  this 
conglomerate  relationship  is  that 
the  learned  counsel  for  the  re- 
spective parties  variously  at- 
tempt to  apply  the  rules  of  law 
ap])licable  to  a  sale  to  a  lea.se. 
It  is  also  claimed  on  the  one 


side  that  the  contract  implies  a 
fi.xed  or  al)Sf)lute  obligation  in 
part  and  the  right  to  uncertain 
damages  in  part.  On  the  other 
hand,  it  is  contended  that  the 
situation  set  forth  in  the  com- 
plaint would  jKTmit  the  plaint itTs 
only  to  [recover)  general  or  spe- 
cial damages,  if  provable,  as  for 
a  breach  of  the  entire  contract. 
Eliminating  the  technical  p<jints 
urged  upon  the  argument  as  to 
whether  the  complaint  sets  forth 
any  cause  of  action,  the  conceded 
facts  apparent  from  the  com- 
plaint and  answers  are  that  the 
plaintiffs  and  the  defendant  Pop- 
ular Pictures  Corporation  en- 
tered into  a  written  agreement, 
annexed  to  the  complaint;  that 
the  plaintiffs  tenderetl  a  negative 
and  films  in  alleged  conformity 
with  the  provisions  of  the  con- 
tract; that  the  defendant  re- 
fused to  accept  them,  and  that 
the  plaintiffs  subsequently  leiused 
the  production  to  third  parties, 
upon  which  considerable  sums 
of  money  have  thus  far  been 
paid  to  the  plaintiffs.  By  the 
contract  the  defendant  agreetl 
to  pay  as  rental,  in  advance,  a 
.sum  not  exceeding  ?14.(XX).  upon 
the  receipt  by  it  of  'the  original 


218 


THE    LAW   OF   MOTION   PICTURES 


defense  that  plaintiff  had  received  moneys  from  other 
exhibitors  on  account  of  the  leasing  of  the  film  and  that 
they  should  be  allowed  to  offset  as  against  the  plaintiff's 


negatives  and  a  sample  print 
thereof.'  The  plaintiffs  undoubt- 
edly would  become  entitled,  upon 
an  acceptance  of  the  negative 
and  films,  to  an  absolute  pay- 
ment of  a  sum  representing  the 
actual  cost  expended  by  the 
plaintiffs  in  producing  the  pic- 
ture. Upon  the  defendant's  fail- 
ure or  refusal  to  accept  the  nega- 
tive and  films  the  plaintiffs  had 
the  right  to  retain  them  and  to 
hold  the  defendant  liable  for 
damages  for  the  breach  of  con- 
tract if  its  refusal  to  accept  was 
unjustifiable.  These  damages 
would  be  measured  by  the  actual 
cost  to  the  plaintiffs  of  producing 
the  negatives  and  films,  and 
of  the  proportionate  amount  of 
the  gross  receipts  derived  by  the 
defendant  from  the  picture,  as 
provided  in  tlie  contract.  It  is 
obvious,  however,  that  it  would 
be  impossible  in  this  case  to 
establish  what  the  gross  receipts 
would  be  where  the  defendants 
have  failed  to  accept  the  films. 
Ilcncc,  under  the  ])eculiar  cir- 
cumstances of  this  case,  th(! 
plaintiffs  would  have  the  right  to 


retain  the  negatives  and  films 
and  to  lease  or  rent  them  to 
third  parties  upon  the  best  terms 
obtainable,  for  the  purpose  of 
recouping  themselves  against  the 
unknowable  loss  sustained  by 
them  by  reason  of  the  Popular 
Pictures  Corporation's  alleged 
refusal  to  produce  the  pictures 
which  deprived  them  of  their 
proportionate  share  of  the  gross 
receipts.  It  seems  to  me  that 
upon  the  alleged  breach  of  the 
contract  on  the  part  of  the  de- 
fendant, by  its  refusal  to  accept 
the  negatives  and  films,  a  cause 
of  action  thereupon  accrued  for 
damages  for  breach  of  the  entire 
contract.  Unless  the  complaint 
is  amended  to  set  up  a  case  for 
damages  for  the  breach,  no  cause 
of  action  is  established.  As  the 
complaint  now  reads,  there  is 
no  allegation  as  to  what  the 
actual  cost  of  the  production 
was.  Tiie  defendant  London  & 
Lancashire  Indemnity  Company 
of  America  will  also  be  liable  !is 
indemnitor,  limited  to  the  amount 
of  the  actual  cost  of  the  produc- 
tion." 


DISTRTBUTOR— IN    0P:NERAL 


219 


claim  the  ainount  so  roceivcd.  The  pluiiililT  inovt-d  for 
judpiipnt  on  that  special  defense,  which  was  granted  by 
the  special  term.  On  appeal  the  order  of  the  special  term 
was  reversed  and  it  was  h(;!d  that  the  defendants  were 
entitled  to  set  oiT  such  amounts  received  by  the  plaintiff. - 


*  GoUlbcrg  v.  Popular  Pictures 
Corp.  (1917),  178  A.  D.  (N.  Y.) 
86.  Headnotc:  The  plaintiff 
agreed  to  manufacture  and  de- 
liver to  the  defendant  a  moving 
picture  film  which  the  defendant 
was  to  have  yie  sole  right  to 
exliibit  in  the  United  States  and 
Canada  and  on  the  delivery  of 
the  film  the  defendant  was  to 
advance  to  the  jjlaintiff  the  ac- 
tual cost  of  manufacture,  not  to 
exceed  SI 4, 000.  The  defendant 
also  agreed  to  pay  to  the  plain- 
tiff fifty  per  cent  of  its  gross  re- 
ceipts from  the  exhibition  of  the 
film,  but  the  plaintiff  was  not 
to  be  entitled  to  said  percentage 
until  the  defendant  had  first 
reimbursed  itself  out  of  the  re- 
ceipts for  the  manufacturing  cost 
advanced  to  the  plaintiff  on  de- 
livery of  the  film,  so  that  the 
original  cost  of  manufacture  was 
ultimately  to  be  borne  solely  by 
the  j)laintiff  out  of  its  share  of 
the  receipts  of  the  defentlant. 
To  secure  performance  the  de- 
fendant gave  a  bond  of  the  de- 


fendant surety  company,  upon 
which  this  action  is  based,  which 
recited  and  referred  to  the  afore- 
said agreement  and  provided . 
that  nothing  therein  contained 
shall  modifj'  the  right  of  the  de- 
fendant to  repayment  of  the  ad- 
vances made  to  the  plaintiff  out 
of  the  moneys  realized  by  the 
defendant  on  said  production. 
The  answer  of  the  defendants 
alleged  that  acceptance  of  the 
film  was  refused  because  the 
pluintifT  liad  delivered  to  another 
exliibitor  substantially  the  same 
film  under  an  agreement  by 
which  the  plaintiff  was  to  receive 
from  the  other  exhibitor  a  per- 
centage of  its  receipts  from  the 
production  of  the  picture  in  the 
United  States  and  Canada  and 
tliat  it  had  actually  received 
certain  sums  of  money  from  said 
exhibitor. 

Held,  that  the  obligation  of  the 
defendant  surety  company  to 
pay  arose,  not  only  wlien  there 
Wits  an  acceptance  of  the  film 
manufactured    by    the    plaintiff, 


220  THE    LAW   OF   MOTION    PICTUKES 

In  Levison  v.  Oes  ^  the  contract  between  the  parties 
provided  for  the  sale  and  dehvery  of  a  single  film  entitled 
"In  the  Hands  of  Impostors"  by  the  defendant  to  plain- 
tiff. The  defendant  refused  to  deliver  the  film  and  this 
action  was  brought  to  recover  for  the  breach. 

As  to  the  measure  of  plaintiff's  damages  the  court  held 
that  ''The  ordinary  rule  of  damage  for  the  breach  of  such 
a  contract  is  the  difference  between  the  market  value  of 
the  film  and  the  contract  price.  ...  I  think  it  is  fair 
to  assume  that  there  was  no  market  price  in  this  city  for 
this  particular  film,  and  that  the  plaintiff  is  therefore 
entitled  to  recover  as  special  damages  both  the  expenses 
incurred  by  him  in  preparing  to  exhibit  the  film  and  loss 
of  profits.  ...  In  this  case,  however,  I  do  not  think 
that  he  has  properly  proven  them.  In  order  to  recover 
anticipated  profits  under  actual  contracts,  the  plaintiff 
must  plead  and  prove  that  he  has  made  such  contracts 
and  that  the  defendant  when  he  agreed  to  sell  the  film, 
knew  that  the  plaintiff  had  made  or  contemplated  making 
such  contracts  which  he  could  not  fulfill  unless  the  de- 
fendant delivered  the  film  to  him." 

Further  on  in  the  opinion  the  court  furnishes  a  basis 
for  the  measurement  of  damages  as  follows: — "Before 
the  jury  can  however  return  a  verdict  based  upon  loss  of 
future  profits  the  plaintiff  must  present  to  the  jury  some 

but   also   when    the   plaintifT   in  cover  tlic  full  amount  of  $14,000, 

other  respects  did   what  it  was  as  the  moneys  received  from  the 

reciuired   to   do   under   the   con-  other  exhibitor  should  be  offset 

tract,  and  that  hence  the  special  against  the  claim, 
defenses  aforesaid  are  good  and  ^Levison    v.    Oes    (1917),    98 

tlic  plaintiff  is  not  entitled  to  re-  Misc.  (N.  Y.)  260. 


DISTRIBUTOR — IN   GENERAL  221 

evidence  from  wliich  it  can  draw  a  reasonal)lc  infer- 
ence as  to  the  probable  approximate  amount  of  such 
loss." 

In  Dressier  v.  Keijslonc  Film  Co.,^  the  plaint  iff,  an 
actress,  sued  to  restrain  defendant  from  granting  riglits  to 
third  parties  in  a  film  which  was  the  jcjint  property  of 
both,  and  for  an  accounting.  The  question  arose  whether 
the  rights  granted  by  the  defendant  with  respect  to  the 
film  were  in  the  nature  of  an  outright  sale  or  a  lease. 

Tn  holding  that  the  relationship  existing  between  the 
defendant  and  the  third  parties  was  that  of  lessor  and 
lessee  the  court  said:— "What  the  Keystone  Film  Com- 
pany has  done  was  to  grant  the  exclusive  right  to  use 
the  picture  for  a  Umited  term,  upon  the  payment  of  a 
fixed  sum.  Tliis  certainly  is  a  lease  and  not  a  sale.  No 
absolute  or  general  property  in  the  picture  was  conveyed 
or  assigned.  The  use  of  the  picture  for  a  term  was  all 
that  was  granted.  The  sum  paid  was  not  therefore  con- 
sideration for  a  sale,  but  was  rent  for  the  use  of  property. 
That  rent  is  payable  in  one  sum,  rather  than  in  install- 
ments, does  not  change  its  character."  ^ 

The  producer  is  entitled  to  maintain  as  high  a  standard 
as  he  can  attain  to  in  the  production  of  his  picture,  and 
the  distributor  or  releasor  may  not  arbitrarily  injm-e  that 
reputation  or  good  will.  For  instance,  where  the  contract 
provides  that  the  picture  is  to  be  released  for  a  ftrst  run 
only  in  Hrst-class  theatres,  the  distributor  is  not  at  Uberty 
to  lease  the  picture  to  cheaper  or  smaller  houses. 

Nor  may  he  mutilate  or  change  the  picture,  for  in  that 

*  Dressier     v.      Keystone     Co.       oth;   aff'd    172    A.    D.    (X.    Y.) 
(1915),  N.  L.  Law  Journal,  Aug.       954. 


222  THE    LAW   OF' MOTION   PICTURES 

respect  the  rights  of  the  producer  are  as  sacred  as  the 
rights  of  the  actor  who  played  in  it. 

The  distributor  may  not  omit  to  release  regularly  as 
provided  for  in  his  contract,  for  the  producer  is  entitled 
to  have  his  pictures  exhibited  before  the  public  at  such 
stated  intervals  as  he  may  deem  compatible  with  his  in- 
terest, and  a  distributor,  by  holding  back  the  release  of 
pictures,  is  in  a  position  to  seriously  affect  the  standing 
and  good  name  of  the  producer. 

Where  the  producer  has  contracted  for  a  certain  size 
of  type  or  display  in  the  advertising  of  the  picture,  he 
may  insist  on  receiving  the  same,  and  for  a  failure  to 
receive  it,  may  bring  an  action  in  damages.  If  the  re- 
leasor distributes  the  picture  with  a  name  other  than  the 
producer  upon  the  advertising  matter,  cause  for  injunc- 
tion would  be  made  out. 

We  have  not  discussed  the  situation  of  a  producer  who 
sells  outright  a  number  of  positive  films  of  motion  pic- 
tures for  use  in  various  territories.  "State  right"  sales 
are  often  made,  and  where  a  lump  sum  is  paid,  the  trans- 
action is  closed,  unless  by  special  contract  the  producer 
reserves  the  right  to  have  the  picture  exhibited  in  a 
certain  manner,  and  to  have  the  same  advertised  along 
certain  lines.  Where  those  reservations  are  not  made  by 
contract,  the  distributor  may  exhibit  the  picture  and 
advertise  the  same  in  any  manner  which  will  be  most 
profitable  to  him. 

Where  third  parties  come  in,  within  the  states  for 
which  the  exclusive  rights  have  boon  granted,  and  in- 
fringe upon  such  picture,  the  distributor  who  has  obtained 
the  rights  for  that  territory,  may  enjoin  such  infringers. 


DISTRIIiUTOR — IN    GENKIIAL 


223 


And  it  would  seem  that  he  need  not  j(jin,  in  sucli  an 
action,  the  producer  from  whom  he  obtained  the  rights. 
If  (he  pnxhiccr  att('m])ts  to  hconso  another  for  tlie  same 
territory  antl  for  the  same  fihn,  he  will  also  be  restrained.'' 


'  General  Film  Co.  v.  Kalcm 
Co.  ct  Kinclograph  Co.  (1913), 
United  States  District  Court, 
South.  Dist.  of  N.  Y.,  April  IG. 
The  action  was  brought  to  en- 
join defendunt  K;doni  from  grant- 
iiig  a  hcenso  to  represent  a  cop\-- 
rifzilited  drama  and  the  defendant 
Kinetograph  Company  from  ex- 
hil)iting  the  same. 

Ward,  J.:  "The  effect  of  tlie 
contract  Ijetween  the  complain- 
ant and  the  Kalem  Company 
was  to  give  the  complainant  the 
exclusive  right  to  represent  and 
grant  to  others  the  right  to  repre- 
sent by  moving  pictures  the 
copyrighted  drama.  There  was 
nothing  left  in  the  Kalem  Com- 
pany to  grant  to  anyone  else 
during  the  continuance  of  the 
complainant's  exclusive  license. 
The  complainant  may  properly 
ask  for  an  injunction  restraining 
a  similar  representation  by  any- 
one else  even  though  acting  in 
good  faith  and  irithout  notice. 
The  motion  is  granted." 

Jesse  L.  Lasky  Co.  v.  Celebrated 
Players  Film  Co.  (1!)H),  214  Fed. 
(D.    C.)    SGI.      Defendant    con- 


tracted with  plaintifT  for  Illinois 
and  other  state  rights  for  "  lirews- 
ter's  Millions."  The  Chicago 
censor  eliminated  several  scenes 
and  while  defendant  was  at- 
tempting to  adjust  this  matter 
plaintilT  contracted  for  the  .same 
state  rights  with  another  com- 
pany. 

//(/ /  tliat  plaintiff  was  not  en- 
titled to  enjoin  the  exhibition  of 
the  pictures  and  that  it  should  be 
enjoined. 

Gilligham  v.  Ray  (1909),  157 
Mich.  488;  122  X.  W.  HI.  The 
complaint  set  forth  that  plaintiff 
had  acquired  from  the  Ciiicago 
Film  Exchange  the  sole  right  to 
exhibit  tiie  "(lans-Xelson  Fight" 
pictures.  That  defendants  had 
obtained  films  from  the  same 
exchange  and  were  about  to 
exhibit   them.     Said   the   court: 

"The  Chicago  Film  Exchange, 
so  far  as  the  bill  shows,  owed  no 
duty  to  complainant  io  protect 
him  against  the  unlawful  or 
fraudulent  use  of  their  film  by 
others.  If  complainant  had  any 
cause  of  action  whatever,  it  w:us 
against  defendants.     Having  ob- 


224 


THE    LAW    OF   MOTION   PICTURES 


Where  the  producer  has  entered  into  a  contract  for  the 
sale  of  "state  rights"  and  before  performance  of  the 
same,  sells  the  right  to  the  same  territory  to  a  third  party, 
who  purchases  in  good  faith,  it  would  seem  that  equity 
will  not  decree  specific  performance  of  the  contract,  but 
leave  the  injured  party  to  his  remedy  at  law.^ 

However,  the  purchaser  of  state  rights  has  no  right  to 
duphcate  the  number  of  positive  prints  by  "duping" 
or  any  other  method. 

Where  state  rights  are  granted  upon  condition  that 
royalties  be  paid  and  the  distributor  breaches  that  con- 
dition, the  producer  may  maintain  replevin  for  his  filmsJ 


tained  the  exclusive  right  to 
exhibit  this  film  in  Muskegon, 
he  had  the  same  right  of  action 
against  any  person  unlawfully 
or  fraudulently  invading  that 
exclusive  right  that  the  Film 
Exchange  Company  itself  would 
have  had  in  the  absence  of  the 
contract.  It  would  hardly  be 
contended  that  the  corporation 
owning  and  controlling  the  use 
of  this  film  could  not  protect  its 
rights  by  suit  to  prevent  the  un- 
authorized use  thereof.  No  good 
reason  is  perceived  for  denying 
the  same  right  to  the  assignee 
of  the  corporation's  exclusive 
rights  within  the  contract  limits 
of  time  and  place." 

Tree  v.  Boivkelt  (Eng.)  (1890), 
12  T.  L.  R.  181.  Mr.  Hecrbohm 
Tree  huviiig  liccnstid  one  Abud 


to  produce  "Trilby"  in  certain 
territory,  it  was  held  that  Abud 
was  the  proper  person  to  main- 
tain an  action  for  infringement 
of  the  play  in  that  territory,  and 
not  Tree. 

See  also  Section  18. 

« Davis  V.  Epoch  Producing 
Co.  (1915),  91  Misc.  (N.  Y.)  631; 
155  N.  Y.  Supp.  597. 

^  Vilagraph  v.  Swaab  (1915), 
248  Pa.  478;  94  Atl.  126;  Lubin  v. 
Swaab  (1913),  240  Pa.  182;  87 
Atl.  597;  Biograph  Co.  v.  Inter- 
national Film  Traders  (1912),  76 
Misc.  (N.  Y.)  436;  134  N.  Y. 
Supp.  1069;  Adams  v.  Fellers 
(1910),  88  S.  C.  212;  70  S.  E.  722. 
For  a  discussion  of  and  excerpts 
from  the  above  ca.ses,  sec  Sec- 
tion 78. 

Sec  gcncr(dlij  on  the  rights  of  a 


EXHIBITOR  — IN    GENKUAL 


225 


Section  75. — Exhibitor — in  general. 

The  relationship  existing  between  the  distributor  and 
the  exhibitor  is  that  of  hcensor  and  licensee.  The  motion 
picture  is  rented  to  the  exhibitor  to  be  used  by  luin  at  a 
stipulated  place  and  for  a  stated  time.  Any  use  of  the 
film  at  any  place  other  than  that  agreed  upon  or  at  a  time 
other  than  that  specified,  constitutes  a  violation  of  the 
license  agreement,  and  subjects  the  exhibitor  to  an  action 
for  damages.*'  The  courts  will  also  construe  it  as  an  in- 
fringement of  the  copyright.^  They  have  even  gone 
to  the  extent  of  construing  such  an  act  as  a  conversion 
of  the  film.'" 

The  exhibitor  must  use  ordinary  care  in  the  handling 


principal  to  recover  moneys  rc- 
cciced  by  his  agenl  from  the  leasing 
of  films:  Frohman  Ammcmcnt 
Corp.  V.  lilinkhorn  (1917),  17S 
A.  D.  (N.  Y.)  431. 

^  Fennimj  Film  Service,  Ltd.,  v. 
Wolrcrhanipldn,  elc,  Cinemas, 
Ltd.  (Kmr.)  (1011),  3  K.  B.  1171. 
PhvintitT  agrecii  to  lea.sc  a  oortaiii 
motion  picture  to  defendants  for 
a  period  of  one  week  to  be  ex- 
liii)ited  at  eertain  speeilied  tliea- 
tres.  Defendants  aj^reed  not  to 
exhibit  the  lilni  at  any  tlieatres 
other  than  those  specifietl.  The 
defendants  exhibited  tlie  film 
at  theatres  other  than  those 
agrwd  upon  and  announeed  their 
intention  by   ix)sters  and  hand- 


bills of  exhibiting  the  film  at 
another  theatre. 

Held  that  in  addition  to  its 
right  to  damast'S  for  breach  of 
its  contract  plaintiff  was  entitled 
to  recover  damages  under  the 
English  Copyright  Act  of  1911, 
as  jK'rformances  of  the  film  :it 
places  other  than  those  agreed 
upon  constituted  an  infringe- 
ment of  plaintiff's  sole  right  to 
j)erform  the  work  in  public. 

»  Fenning  Film  Service,  Ltd.,  v. 
Wolverhampton,  etc.,  Cinemas, 
Ltd.,  (Eng.)  (1914),  3  K.  B.  1171. 

'"  Biograph  Co.  v.  International 
Film  Traders  (1912),  70  Misc. 
(\.  V.)  430;  134  X.  Y.  Sup|). 
1(M')9.  iS^e  sunnnary  of  ca.se 
uniler  Section  78. 


226  THE    LAW   OF   MOTION   PICTURES 

of  films.  The  film  being  fragile  in  its  nature,  it  is  easily 
ruined.  If  the  operator  in  projecting  the  film  handles  it 
roughly  and  renders  it  unfit  for  further  use  the  exhibitor 
will  be  liable  for  the  value  of  the  print.  The  courts  will 
always  give  due  consideration  to  the  fact  that  each  ex- 
hibition leaves  its  imprint  upon  the  film  and  that  films 
are  pecuUarly  susceptible  to  ''wear  and  tear." 

Where  the  film  is  destroyed  by  accident  or  fire  which 
is  not  due  to  any  fault  on  the  part  of  the  exhibitor  or  his 
employes,  the  distributor  must  bear  the  loss. 

Where  the  film  is  libelous,  and  the  exhibitor  has  notice 
thereof,  he  is  a  joint  tort  feasor. 

If  the  exhibitor  is  prevented  from  showing  the  film 
because  of  the  closing  of  his  theatre  by  the  public  au- 
thorities he  remains  Uable  for  the  license  fees."  But  if 
the  pubHc  authorities  prohibit  him  from  exhibiting  the 
film  because  of  its  immoral,  lewd,  or  lascivious  character 
he  is  under  no  obligation  to  pay  such  license  fees;  as  in 
the  latter  instance  it  would  be  contrary  to  public  policy 
to  compel  one  to  carry  out  a  contract  which  in  its  per- 
formance would  contravene  the  law.^- 

There  may  be  said  to  have  arisen,  with  the  coming  in 
of  the  motion  picture  industry,  a  new  warranty,  that  is, 

"  Thring     v.     Lucas     (Kiiff.)-  proijrictors    to    cxliibit    a.    film, 

Strong  on  "Dramatic  and  Musi-  i)l;iiiitilT,  llu;  distributor  who  had 

cal  Law, "  3d  Ed.,  p.  30.    Sec  also  contracted  with  the  proprietors, 

ca.scs  under  Section  55.  could  not  recover  any  damages 

^^SloU  V.  Gamble  (lOng.)  (1916),  as  of  a  breach  of  contract.    Also 

115  L.  T.  309;  32  T.  L.  R.  579;  held  in  this  connection  that  plain- 

85  L.  J.  (K.  B.)  1750;  2  K.  H.  .^)0I.  HIT  was  not  an  aggrieved  party. 

Where    the    licensing;    authority  Stall,  ex  pai\  (I'^ng.)  (1910),  114 

had  refused  to  permit  the  theatre  L.  T.  234;  32  T.  L.  R.  84. 


EXHIBITOR— IN    GKNEUAL  227 

an  implied  wurrauty  ul'  "clurily  of  uutline  and  iitnt'.ss  fur 
exhibition."  As  has  been  aheady  noted,  the  fihn  is  a 
very  dehcate  substance,  easily  injured  through  use,  and 
the  clarity  of  outline,  and  the  fitness  generally  for  ex- 
hibition decrease  in  proportion  to  the  number  of  times 
the  film  has  been  exhibited.  There  has  gradually  de- 
veloi)ed  in  the  trade  the  implied  warranty  that  a  film  re- 
leased for  exhibition  shall  be  reasonably  fit  to  be  shown. 
If  the  film  furnished  to  the  exhibitor  violates  this  war- 
ranty, he  may  uj)on  discovering  the  same,  either  rescind 
the  contract  and  sue  for  the  return  of  the  money  paid  by 
him  as  license  fees,  or  he  may  stand  u])on  the  contract 
and  sue  for  his  damages. 

A  hcense  to  exhibit  a  motion  picture  film  is  purely  per- 
sonal, and  may  not  be  assigned  by  the  licensee  without 
the  consent  of  the  licensor.  So  that  where  an  exhibitor 
has  an  agreement  with  the  distributor  or  releasor  for  a 
certain  number  of  releases  for  a  specified  period,  and  the 
exhibitor  sells  his  business  to  another,  he  may  not  assign 
his  contract  with  the  producer,  to  the  purchaser,  nor  is 
^uch  a  contract  an  asset  or  good  will  of  the  business.  It 
does  not,  in  the  event  of  the  exhil)it()r's  })ankruptcy,  pass 
to  his  trustee.'^ 

Where  an  exhibitor,  who  has  l)een  given  an  exclusive 
Hcense  to  exploit  a  film,  finds  that  his  licensor  is  attempt- 
ing to  violate  such  sole  grant,  he  may  enjoin  his  licensor 
as  well  as  the  one  with  whom  his  licensor  has  contracted. • ' 

' ' /n    re     Kuy-Tcc     Film     Ex-  ^^(itiural   Film   Co.   v.    Kalim 

change  (1011),  193  Fed.  (D.  C.)  Co.    (1913),    United   Stiites   Dis- 

nn.     Sec  (Uses  cited   in  Section  trict  Court,  South  Dist.  of  N.  Y., 

M.  April    16;    Jesse    L.    Lashj    Co. 


228  THE   LAW   OF  MOTION   PICTURES 

But  where  the  defendant  had,  after  the  making  of  his 
contract  with  the  plaintiff,  sold  some  of  his  rights  to  an 
innocent  third  party,  equity  would  not  decree  specific 
performance.^^ 

Section  76. — Advertising  matter,  programs,  bill-posters. 

The  methods  of  advertising  productions  of  both  plays 
and  motion  pictures  have  been  gradually  extended,  until 
they  have  reached  a  stage  where  they  embrace  every 
known  form  of  publicity  medium.  The  usual  and  cus- 
tomary mode,  however,  is  by  the  old-fashioned  billboard, 
the  poster  and  newspaper. 

On  the  other  hand,  quite  an  industry  has  been  built  up 
for  the  advertising  of  merchants  so  as  to  reach  the  theatre 
audiences  by  means  of  programs,  curtain  displays  and 
motion  picture  slides. 

A  contract  with  a  Hthogi'apher  for  the  making  of  posters 
has  been  held  to  be  one  for  work  and  labor,  in  one  state, ^^ 
and  one  for  goods  sold  and  delivered  in  another  state.  ^^ 

V.  Celebrated  Players  Film  Co.  graphs  and  engravings  as  adver- 
(1914),  214  Fed.  (D.  C.)  861;  tisements  for  a  theatrical  manage!; 
Gillingham  v.  Ray  (1909),  157  held  to  be  not  a  sale,  but  a  con- 
Mich.  488;  122  N.  W.  Ill ;  Tree  v.  tract  for  work  and  labor. 
noivkell  (I'hig.)  (1890),  12  T.  L.  11.  And  where,  after  the  work  was 
181.  See  Section  74,  footnote  ."),  completed  and  set  aside  for  the 
for  excerpts  from  above  cases.  Sec  manager,  and  he  did  not  come 
also  Section  18.  for  it,  and   the  goods  were  dc- 

'^  Davis    V.    Kjx/ck    Proditi-ing  stroyed  by  fire,  the  plaintiff  was 

Co.  (1915),  91  iMisc.  (N.  Y.)  G;il;  permitted     nevertheless     to     re- 

155  N.  Y.  Supp.  597.  cover  as  for  work  ami  labor. 

^UU;n(ralLiih.\.  Moore  {\m.)),  'Uiicn    v.     Abbey    (1891),     V.\ 

75  Wis.  170;  43  N.  W.  1124.    A  N.  Y.  Supp.  28().     In  an  action 

contract    to    manufacture    litho-  for    goods    sold    and    delivered, 


ADVERTISINT.    MATTICR.    PROGRAMS,    BILI^POSTERft      220 

Under  ii  contmct  for  display  on  a  drop  curtain  it  was 
held  that  i)laiiitilT  could  recover  for  the  weeks  when 
performances  in  the  theatre  were  given.'** 

Wliere  tlie  owner  of  the  theatre  had  contracted  with 
the  j)laintifT  for  a  drop  curtain,  and  the  latter,  on  the 
strength  of  this,  had  erected  the  curtain  and  entered  into 
advertising  contracts  with  third  parties,  the  owner  of  the 
theatre  was  coiiipollod  to  permit  the  use  of  the  curtain 
in  the  theatre  during  the  term  of  the  contract.'^ 


nitulc  pursuant  to  a  sam|)le  litlio- 
graph  funiishwl  to  plaintilT  Ity 
dcfciKJant,  it  was  rcvcrsiljlc  error 
for  the  court  to  refuse  to  charge 
that  "if  the  jury  find  that  they 
(the  lithographs]  were  not  ac- 
cording to  tlie  sketches  the  phxin- 
tiffs  cannot  recover,"  the  ap- 
pellate court  holding  that  under 
a  general  or  si^ecific  denial  the 
defendant  might  give  evidence 
which  showed  or  tended  to  show 
that  the  evidence  relied  upon 
by  the  plaintilT  to  establish  a 
material  fact  was  untrue. 

David  Allen  Hi II posting  v.  A'///<7 
(Irish)  (lOlo),  Div.  Ct.,  2  I.  R. 
213.  Defendant,  proprietor  of 
a  theatre,  held  liable  for  brcacli 
of  a  contract  for  bill  posting. 

'*  Imperial  Curtain  Co.  v. 
Straiiss  (1912),  7(1  Misc.  (X.  V.) 
533;  135  N.  Y.  Supp.  577.  When 
in  a  contract  for  the  <lisplay  of 
ilefendant's   advertisement   on    a 


theatre  drop  curtain,  the  defend- 
ant agreed  to  pay  a  .specified 
sum  per  week  during  the  period 
of  the  contract  and  "credit  wa.s 
to  be  given  for  each  entire  week" 
the  advertisement  was  not  shown: 
//(/'/  that  plaintiff  was  obligated 
to  display  the  advertisement 
during  those  weeks  when  per- 
formances were  given  and  wa.s 
entitled  to  recover  for  display 
of  the  ailvertisement  after  de- 
fendant had  directeti  its  dis- 
continuance. 

'^lieer  v.  Canary  (1896),  2 
A.  I).  (N.  Y.)  51S;  38  X.  Y. 
Supp.  2;}.  Defendants  agreed  to 
])ermit  plaintiff  to  erect  a  cur- 
tain in  front  of  the  proscenium 
of  their  theatre,  the  curtain  to 
be  covered  by  advertisements 
and  the  plaintiff  to  pay  a  monthly 
rental  for  the  privilege.  Held 
tliat  plaintiff  was  entitled  to  an 
order  directing  defendant  to  use 


230 


THE    LAW   OF   MOTION   PICTURES 


But  where  the  owner  of  the  curtain  is  remiss  in  the 
payment  of  his  rentals,  the  owner  of  the  theatre  may 
rescind  the  contract  and  remove  the  curtain.  2° 

A  change  in  the  character  of  the  productions  given  at 
the  theatre  from  high-class  to  cheap  and  inferior  drama 
and  vaudeville,  breaches  the  contract,  and  the  curtain 
may  be  removed.-^ 

In  a  contract  for  program  advertising  made  for  three 
theatres,  it  was  held  that  the  contract  was  not  divisible, 
and  a  closing  of  one  of  the  theatres  breached  the  entire 
contract.-^    And  in  a  contract  of  this  kind  made  for  the 


the  curtain,  it  appearing  that 
plaintiff  had  been  put  to  some 
expense  in  furnishing  and  setting 
up  the  curtain  and  had  entered 
into  contracts  for  the  display  of 
advertisements  thereon,  the  order 
of  special  term  denying  the  mo- 
tion for  an  injunction  pendente 
lite  being  reversed. 

•"  BeUinck  v.  Tacoma  Theatre 
Co.  (1910),  61  Wash.  132;  111 
Pac.  1045.  Defendant  permitted 
plaintiff  to  hang  an  advertising 
curtain  in  its  theatre  for  which 
it  was  to  receive  ."$175  a  month 
payable  in  advance.  Plaintiff 
made  partial  payments.  De- 
fendant rescinded  tlie  contract, 
and  the  court  held  that  while  the 
contract  was  silent  on  that  jioint, 
that  time  was  nevertheless  of  the 
essence  of  the  contract,  and  plain- 
tiff was  prop(!rly  non-suited. 


-'  Nixon  &  Zimmerman  v.  Lee 
Lash  Co.  (1911),  40  Pa.  Sup.  Ct. 
89.  Where  the  owner  of  a  drop 
curtain  contracts  to  put  his  cur- 
tain in  a  theatre,  for  a  term  of 
five  years,  and  after  a  time  the 
performances  given  at  the  house 
are  changed  from  legitimate  dra- 
matic productions  to  cheap  vaude- 
ville, the  contract  is  breaduMl 
and  the  owner  of  the  curtain 
may  take  it  back  and  be  relieved 
from  future  payments  under  the 
contract. 

-^Ilazzard  v.  Ho.vsie  (1889),  53 
Hun  (N.  Y.),  417;  6  N.  Y.  Supp. 
295.  The  action  was  brought 
upon  a  contract: 

"I  hereby  agre(>  to  pay  I'^dward 
J.  Ilazzard  the  sum  of  SS.,")!)  por 
week  for  publishing  my  adver- 
tisement in  the  l<'ifth  Av(>nue, 
Union  S(iuare  and  Lyceum  Thea- 


ADVERTIrtlNO    M  ATTHR,    I'liOGRAMR,    HIM^I'OSTERS      231 


length  of  II  theatrical  season,  the  jury  was  permitted  to 
determine  what  period  constituted  such  a  season.-^  A 
faiUire  to  give  the  specified  number  of  porformaiu-cs 
makes  tlie  owner  of  the  theatre  Hable  under  the  contract.-' 
Where  tlie  performance  of  the  contract  "depends  upon 


trc,  to  occupy  one  inch  on  i)ro- 
gram  page  for  the  tlicatre  season. 
Season  ISSO,  1SS7. 

"Anna  P.  Hoxsie." 

II(l({  that  tliis  was  an  entire 
contract,  and  where  the  Fiftli 
Avenue  Theatre  closed  first,  the 
contract  was  tertninated  at  tliat 
time  and  defendant  was  Hable 
only  up  to  that  time. 

»  Straffurd  v.  Stetson  (1910),  41 
Pa.  Sup.  Ct.  5G0.  The  contract 
was: 

"lasert  our  advertisement  in 
the  Kieth's  Chestnut  Street  Thea- 
tre programme  for  the  (no  other 
piano  house  ad.  hut  Blasius  & 
Sons)  theatrical  season  of  1902 
and  190;i,  to  occupy  space  of 
opposite  page  4,  on  page,  for 
which  we  agree  to  pay  t<in  dollars 
per  week  payables  every  four 
w(H^ks."  Pro]M^rly  sul)niittc(l  to 
the  jury  as  to  the  length  of  the 
"theatrical  season  of  1902  and 
1903." 

^*  Straiiss  V.  Ilnminerstein 
(1912),  152  A.  D.  (N.  Y.)  12S;  i:{() 
N.  Y.  Supp.  613.  Defendant 
granted  to  plaintiff  the  exclusive 


license  to  circulate  programs  in 
defendant's  theatre  for  a  specified 
period;  paragraph  second  pro- 
videil  that  there  would  he  given 
six  performances  a  week  for 
twenty  consecutive  weeks  in  each 
year,  plaintiff  agreeing  to  pay  a 
specified  sum  jx-r  performance^ 
the  contract  further  provided 
that  if  the  giving  of  grand  ojMTa 
should  he  discontinued,  the  plain- 
tiff should  at  its  option  have  all 
the  program  rights  with  resjx^ct 
to  such  other  performances  as 
might  be  given  at  the  theatre. 
Ilcht  that  the  agreement  con- 
tained in  paragraph  second  was 
ai)solute  and  unqualiliod  and 
tiiat  ui)on  defendant's  failure  to 
give  the  specified  number  of  per- 
formances for  the  period  therein 
stated  plaintiff  could  maintain 
action  for  the  breach  of  the  con- 
tract, subject,  however,  to  this: 
that  if  plaintiff  availed  it.><elf  of 
its  option  and  furnished  jirogram 
at  performances  other  than  that 
of  grantl  ojwra,  it  could  not  then 
recover  for  a  breach  (»f  para- 
graph second. 


232 


THE    LAW    OF   MOTION   PICTURES 


the  happening  of  an  event  over  which  neither  party  has 
any  control,  an  impHed  condition  will  be  read  into  the 
agreement  to  the  effect  that  the  contract  shall  be  abro- 
gated upon  the  non-happening  of  such  an  event."  -^ 


Section  77. — What  are  fixtures? 

In  considering  what  tests  to  apply  to  the  various  parts 
of  the  theatre  building  to  determine  whether  or  not  they 
are  fixtures,  regard  must  be  had  to  the  use  for  which 
they  are  intended,  the  manner  in  which  they  are  attached 
to  the  realty,  and  what  the  condition  of  the  theatre 
would  be  were  they  removed. 

Chairs  on  the  floors  of  the  orchestra  and  balconies  and 
in  the  boxes  are  fixtures  attached  to  the  realty  and  may 
not  be  removed, -''  although  a  distinction  has  been  made 


"  Marks  Realty  Co.  v.  "Chwxh- 
ills"  (1915),  90  Misc.  (N.  Y.) 
370;  153  N.  Y.  Supp.  264.  See 
also  Marks  Realty  Co.  v.  Hotel 
Hermilage  (1915),  170  A.  D. 
(N.  Y.)  484;  156  N.  Y.  Supp.  179; 
Marks  Really  Co.  v.  Rectors 
(1915),156N.  Y.  Supp.  180. 

^'- Gould  V.  Springer  (1912),  200 
N.  Y.  041;  99  X.  K.  149.  Lessw 
of  a  theatre  was  notified  by  the 
lioartl  of  Health  to  remove  torn 
and  unclean  carpets  and  unsafe 
and  broken  cliairs  from  the  or- 
chestra floor.  Plaint  ilTs  inad(^ 
the  re|)airs  and  brought  action 
for  the  sum  exix-ndcd.  Ihlil 
that  chairs  on   the  floor  of  the 


orchestra  were  fixtures  attached 
to  the  realty.  The  rights  of  the 
parties  being  fixed  by  the  lease, 
tlie  plaintiff  was  under  no  duty  to 
make  the  repairs,  and  a  verdict 
in  plaintiffs'  favor  was  affirmed. 

Forbes  v.  Howard  (1856),  4 
R.  I.  364.  Where  in  a  contract 
for  the  construction  of  a  build- 
ing the  (U'fendant  agreed  to  fur- 
nish the  fixtures  of  .such  a  build- 
ing it  was  held  that  seats  were 
fixtures  and  should  have  been 
furnished  by  defendant. 

To  the  same  cjfeet:  Render  v. 
Kiiuj  (I'.lOi),  111  Fed.  (C.  C.)  60; 
(Hivvr  v.  Lansimi  (1S99),  59  Neb. 
219;  80  N.  W.  829. 


WHAT   AUK    FIXTURES; 


2Xi 


hotwocn  suph  chairs  as  wciv,  and  such  as  were  not  fas- 
tciictl  to  tlic  floor.'-'  Intention  of  the  parties  is  of  par- 
amount importance,-^  although  such  intention  may  Ik* 
spelt  out  by  th(^  fact  that  a  chattel  mortgage  was  placed 
upon  the  articles  in  (luostion.'-"-' 

Lighting  and  Gas  Appliances  that  are  essential  to  the 
operation  of  the  theatre  are  fixtures.^"  This  is  especially 
true  whore  those  appliances  have  been  so  built  as  to 
hannonize  with  tlio  gonoral  decoration  of  the  theatre, 
thereby  showing  an  intent  to  make  them  a  permanent 
part  of  tho  realty."" 


^  SecuriUj  TniM  Co.  v.  Temple 
Co.  (1904),  (i7  X.  .1.  i:(i.  r)14;  oS 
At!.  865. 

^  Sosiiinn  V.  Conlon  (1S04),  Tu 
Mo.  App.  2.").  Ill  :iii  action  to 
establish  a  mochanic's  lien  it  was 
hold  tliat  tho  tost  whethor  the 
inatoiials  furnished  for  tlio  hiiild- 
iiiK  of  tlio  thoatro  were  iixtiiros, 
was  whothor  such  materials  woro 
furnished  and  received  with  tho 
intention  of  forniiiif^  an  intoRral 
part  of  tho  thoatro.  To  the  mine 
cffed:  U nihil  v.  Mloirnn  (1SS2), 
7S  Tonn.  .')2;{. 

''.IWrcir.s  V.  Chnntllir  (ISSS), 
27  III.  AiM).  10:{.  //cW  that  chairs 
contained  in  an  opera  house  wore 
not  fixtures  ui)on  tho  ground  it 
was  tlie  intention  of  tho  ownois 
of  tlje  ojx^ra  house  and  those 
furnishing  the  chairs  that  they 
<^houKl  not  be  regarded  a.s  such, 


such  intention  being  evidenced, 
atnotiR  other  things,  by  a  chattel 
mortgage  given  thereon. 

»"  Sccurily  Tnist  Co.  v.  Temple 
Co.  (1904),  07  N.  J.  Eq.  514;  58 
Atl.  805.  Hut  see:  McKeagc  v. 
Hanom-  Fire  Im.  Co.  (1880),  81 
X.  Y.  38;  N.  Y.  Life  //w.  Co.  v. 
Allison  (1901),  107  Fed.  (C.  C.  A.) 
179. 

^'  Wnhle-PhilUps  Co.  v.  FiU- 
gcmld  (1914),  83  Misc.  (X.  Y.) 
0;U);  140  X.  Y.  Supp.  562;  afT'd 
1.57  X.  Y.  Supp.  11.50.  .\ction 
to  foreclose  mochanic's  lion  u|)on 
a  theatre  building  and  office 
building.  The  <|U(»stion  w;vs 
whethor  certain  lighting  lixtun^ 
wore  part  of  the  realty.  Judge 
Cohalan  held  that  tiie  light  inn 
fixtures  in  the  office  building 
were  not  of  a  jXTmanont  charac- 
ter.     But    that    in    the    theatre 


234 


THE    LAW    OF   MOTION    PICTURES 


The  Switchboard  was  also  held  to  be  a  fixture  as  well 
as  the  wires  and  lighting  plant. ^■- 

The  Drop  Curtain  has  been  held  to  be  an  integral  part 
of  the  realty  and  not  capable  of  being  removed.^'' 

Scenery  which  is  not  of  a  permanent  character  and  not 
fastened  in  particular  to  anything  is  not  a  fixture,^*  al- 


building  the  lighting  fixtures 
were  part  of  a  scheme  to  har- 
monize with  the  decorations  and 
interior  construction  of  that  part 
of  the  building.  To  the  same 
effect:  Wahle-Philllps  Co.  v.  Fifty- 
Ninth  Street  and  Madison  Ave. 
Company  (1912),  153  A.  D. 
(N.  Y.)  17;  138  N.  Y.  Supp.  13; 
aff'd  214  N.  Y.  684;  108  N.  E. 
1110. 

"  Webb  V.  Neiv  Haven  Theatre 
(1913),  87  Conn.  129;  87  Atl.  274. 
Held  that  the  lighting  plant, 
switchboard,  wires  and  the  like 
were  fixtures  and  not  removable, 
even  where  the  lessee  had  taken 
out  the  old  ones  and  replaced 
them  by  a  new  plant,  since  the 
house  was  practically  useless 
without  such  plant,  and  an  intent 
to  make  it  a  permanent  part  of 
the  freehold  had  to  be  j)re- 
sumed. 

^^  Bender  v.  Kituj  (liiOl),  111 
Fed.  (('.  C;.)  00;  Waycross  v. 
Sossman  (1894),  94  Ca.  100;  20 
S.  K.  252. 


^^  Bender  v.  King  (1901),  111 
Fed.  (C.  C.)  60.  Held  that  opera 
house  chairs  screwed  to  the 
ground,  appliances  to  facilitate 
handling  of  scenery  during  per- 
formances and  drop  curtain  were 
fixtures  and  went  with  the  realty; 
that  scenery  which  was  in  no 
way  attached  to  the  building 
and  was  shown  to  be  capable  of 
being  used  in  other  buildings 
was  personalty.  To  the  same 
effect:  Security  Trust  Co.  v. 
Temple  Co.  (1904),  67  N.  J.  Eq. 
514;  58  Atl.  865;  New  York  Life 
Ins.  Co.  v.  Allison  (1901),  107 
Fed.  (C.  C.  A.)  179. 

But  see:  Sosman  v.  Conlon 
(1894),  57  Mo.  App.  25.  Held 
that  while  stage  fittings  and 
scenery  were  removabl(%  they 
were  nevertheless  fixtures. 

"The  question  is  not  whether 
they  composed  integral  parts  of 
a  building,  l)ut  whether  they 
were  furnished  or  received  with 
the  intention  of  forming  integral 
])arts  of  a  theatre  buildimj.  .  .  ." 


REPLKVIV    OF'    FIIAf    AVI)    M\(HI\'R 


23; 


though  spociul  sccnc'iy  constituting  part  of  the  pcriiiaiicut 
stage  cHiuipnicnt  has  been  held  to  be  a  fixture.^ 

Ticket-booths  are  not  fixtures;  nor  are  portal>l(*  dance 
floors  put  up  in  sections,'"''  nor  a  carousel  in  an  amusoniont 
l)ark,  even  though  an  old  one  had  been  removed  and  a 
new  one  substituted  1)V  the  lessee." 


Section  78. — Replevin  of  film  and  machine. 

Where  the  i)laintilT,  the  owner  of  motion  picture  films, 
had  leased  them  to  defendant  under  a  license  agreement 
which  the  latter  had  violated,  the  plaintiff  was  entitled 
to  maintain  rei)levin  for  the  possession  of  the  films. ''^    The 


^^  Oliver  v.  Lansnng  (1899),  .')9 
Nel).  219;  80  N.  W.  829.  Held 
that  "tho  staRC  appointmonts, 
such  as  sconory,  etc.,"  as  vvoll 
as  tho  opera  cliairs  fustoiiod  to 
tlio  floors,  all  of  which  had  \)0('\\ 
huilt  and  dosignod  specially  for 
tho  huililiiiK  wore  fixturos  and 
passed  with  (he  realty;  that  a 
piano,  carpets  :iiid  curtains  were 
personalty. 

Waycro^s  v.  Sossman  (1894), 
94  Ca.  100;  20  S.  K.  2r)2.  Ihhl 
that  scenery  and  ftther  articles 
constitutiuR  tho  staRO  and  scenic 
outfit  of  an  opera  house  a.s  well 
as  droi>-eurtain,  wings,  borders, 
set-houses,  settees  and  balus- 
trades, were  fixtures.  To  the  same 
etTcet:  drewnr  v.  AU(umy,  .i  Teiui. 
Ch.  .■)84. 

'» Scciin'lii  Trust  Co.  v.  Temple 


Co.  (1904),  07  X.  J.  Va{.  r)14;  ."iS 
Atl.  SO.").  Held  that  the  f(;llow- 
ing  were  not  fixtures  of  a  theatre: 
stage-scenery,  chairs  not  fas- 
tened to  tho  realty,  combination 
closet,  clock,  ticket-boxes,  mirrors, 
tools,  wrenches  and  oilfitter,  large 
portable  dance-floor  in  sections. 

''Midler  V.  Riltersrltle  Hotel 
(l9i;i),240Pa.  79;S7  Atl.  421. 

^^Lubin  V.  Swaah  (19i;i),  240 
Pa.  182;  87  Atl.  597.  This  was 
an  action  in  replevin  to  recover 
nine  motion  i)icture  films  leased 
under  a  licensed  agreement. 
PlaintitT  had  been  licensetl  i)y 
the  Moving  Picture  Patents  Co.. 
owner  of  patents,  to  make  and 
lea.se  films  to  exchiinges;  defeiid- 
ant  operated  an  exchange.  The 
contract  provided  that  on  t(>r- 
mination   for  a   breach    plaint  ill 


236 


THE    LAW   OF   MOTION   PICTURES 


physical  property  of  the  films  is  in  the  hcensor,  which  is 
sufficient  for  the  purposes  of  the  action. 

Likemse,  the  owner  of  a  motion  picture  machine  may 
reple\'y  the  same,  even  though  the  same  was  taken  out 
of  the  state  and  sold  to  a  bona  fide  third  party. ^^ 

In  each  case,  the  rule  is  that  while  a  license  in  the 
use  of  the  thing  may  be  granted,  title  to  the  physical  film 


would  after  20  days  have<tlie  right 
to  possession. 

Defenses  were  mainlj^  undue 
oppression  and  conspiracy  to 
harm  the  defendant,  and  the 
premature  issuance  of  the  writs 
of  replevin. 

Judgment  in  favor  of  defend- 
ant was  reversed  on  assignments 
of  error  that  defendant,  after 
notice  of  cancellation  of  the  con- 
tract, had  no  right  to  license  the 
exhibition  of  the  films  to  third 
parties. 

Vitagraph  Co.  v.  Sicaab  (1015), 
248  Pa.  478;  94  Atl.  126.  This 
case,  like  Lubin  v.  Swaab,  240 
Pa.  182,  presents  the  question 
of  the  right  to  rci)l(>vin  motion 
picture  fihns,  the;  defenses  also 
being  conspiracy  and  bad  faith. 

Biogroph  Co.  v.  JnlernuUonal 
Film  Traders  (1912),  7G  Misc. 
(N.  Y.)  430;  134  N.  Y.  Supp. 
10G9.  Plaintiff  was  a  licensed 
manufacturer  of  the  Motion  Pic- 
ture Patents  Co.  It  rented  fihn 
to  exliibitors  licensed  by  the  Mo- 


tion Picture  Patents  Co.,  in  ac- 
cordance with  its  agreement 
with  the  Patents  Co.  The  title 
in  the  film  was  in  plaintiff. 
Defendant  was  not  a  licensed 
exhibitor  and  could  not  clearly 
show  how  it  came  into  possession 
of  the  films.  Held  that  plaintiff 
could  replevin  the  films  and  that 
defendant  in  refusing  to  deliver 
up  the  same  was  guilty  of  conver- 
sion. 

'^  Adams  v.  Fellers  (1910),  88 
S.  C.  212;  70  S.  E.  722.  A  mo- 
tion picture  machine  was  rented 
in  Georgia  bj'-  plaintiff  to  one 
Heatherly,  under  an  oral  agree- 
ment that  the  machine  was  not 
to  be  taken  outside  of  the  state; 
the  rental  agreement  was  not 
recorded,  the  state  of  (Jeorgia 
not  requiring  such  recording. 
The  machine  was  removed  to 
South  Carolina  and  there  sold 
tf)  a  bona  fide  purchaser,  the  de- 
fcMulant.  lUid  plaintiff  w:vs  en- 
tilled  to  a  return  of  machine. 


THEATUE    LEASES  2'M 

or  iiiachine  still  remains  witli  tin-  licensor;  and  on  tiic 
breach  of  the  agreement  between  them,  the  licensor  may 
rcscintl  the  contract  and  get  back  the  physical  possession 
of  ills  property. 

Section  79. — Theatre  leases. 

While  there  was  an  old  Eii«i,lish  custom  with  reference 
to  one  month's  termination  of  a  lease  of  a  theatre  upon 
notice,  the  modern  lease  of  a  theatrical  building,  theatre 
or  music  hall  does  not  differ  from  leases  of  real  proi)erty 
in  general.  However,  as  productions  increase  in  magni- 
tude, and  the  relationship  between  the  theatre  and  the 
various  forms  of  amusement  offered  in  it  becomes  more 
and  more  complex,  covenants  more  or  less  ])eculiar  to 
the  theatrical  profession  are  inserted  into  the  lease,  and 
come  up  for  construction  by  the  courts  from  time  to  time. 

Where  the  lessee  of  a  theatre  was  described  as  "]\I.  G. 
representing  ]\Icssrs.  C.  A.  C.  &  Co.  jManager  of  the 
A.  0.  B.  Co."  it  was  held  that  "M.  G."  was  hable  as  a 
jjrincipal  and  the  words  added  to  his  name  were  merely 
words  of  description."' 

A  theatre  is  often  spoken  of  as  a  "fu'st-class  theatre" 
to  distinguish  it  from  theatres  in  which  cheaper  and 
inferior  grades  of  plays  are  produced.  Where,  in  the 
lease,  the  parties  have  covenanted  that  none  but  "first- 
class"  productions  are  to  be  given  in  the  theatre,  a  breach 
of  such  covenant  l)y  the  giving  of  inferior  productions, 
entitles  the  lessor  to  maintain  hold-over  ])rocecdings,^' 

<"(7rfl«  V.  McVickar  (1S74),  S      FA  Miso.  (N.  V.)  M;  105  X.  Y. 

Bis.s.  7;  10  Fed.  Cius.,  No.  .'),708.      Siipp.  477.      liuld-ovcr  procccd- 

*'  Mailer  of  ISchoclkopf  (1907),      iiigs  by  lessor  of  theatre  because 


238  THE    LAW  OF  MOTION   PICTURES 

In  Hammerstein  Opera  Co.  v.  Belasco,^'-  the  interesting 
question  arose  as  to  whether  the  exhibition  of  motion 
pictures  violated  a  covenant  in  a  lease.  The  lease  pro- 
vided that  the  premises  were  ''to  be  used  and  occupied 
by  the  said  tenant  as  a  first-class  theatre"  and  that  the 
tenant  would  not  use  them  or  permit  them  to  be  used 
"for  any  business  purpose  deemed  disreputable  or  extra 
hazardous  on  account  of  fire,  etc."  Belasco  had  used  the 
theatre  for  high-class  plays  for  wliich  he  charged  from 
fifty  cents  to  two  dollars  admission;  he  had,  however, 
hcensed  the  Universal  Film  Company  to  exliibit  in  the 
theatre  a  motion  picture  to  which  admission  fees,  ranging 
from  twenty-five  cents  to  one  dollar,  were  charged.  It 
was  claimed  that  such  motion  pictures  were  not  "first- 
class"  plays,  and  that  the  premises  were  rendered  "extra 
hazardous  by  fire." 

The  court  sustained  the  plaintiff  and  granted  the  in- 
junction.^'* 

of  breach  of  covenant  to  operate  the  facts  set  out  in  the  affidavits 

"for  any  other  purpose  than  a  jjresented    by    the    plaintiff    arc 

theatre     and     opera     house     of  true,  then  the  premises  are  not 

strictly  the  hrst  class,  etc."    De-  being  used  as  a  first-class  theatre, 

fendant    gave    exhibitions    of    a  und  if  such  use  is  continued  the 

cheaper  standard,  and  the  court  value   of    the    property   will    be 

held  that  the  lease  was  violated,  greatly       diminished.  .  .  .     Not 

and  the  huidlonl  was  (Mititlcd  to  only  this  but  tlio  fact  is  not  dis- 

an  order.  puted  i)ut  that  the  use  to  which 

*^  Hammerstein       v.       IMaxco  the  theatre  is  now  being  put  is 

(1914),  161  A.  I).  (N.  Y.)   109;  extra   hazardous   on   account   of 

146  N.  Y.  Supp.  341.  fire.     In  answer  to  this  the  de- 

^'  Ffammerslein       v.       IMa^ro  fcndants   state;    they    liave   com- 

(1914),  161   A.  D.   fX.   y.)    199;  plied   with   ail   tlie   requirements 

116  .\.   V.  Sui)|).  .'ill.     "...   If  of  tiic  luuiiicipai  authorities,  but 


THEATRE    LEASES 


239 


In  a  later  decision,  however,  it  was  held  that  a  cove- 
nant to  exhibit  pictures  for  admission  ranging  from  twenty- 
five  cents  to  two  dollars  was  not  violated  by  cliarging 
only  twenty-five  cents  to  fifty  cents." 


if  so  the  present  use  of  the  theatre 
would  seem  to  he  a  violation  of 
the  clause  with  reference  to  an 
increased  hazard  on  account  of 
fire." 

**aod€t  V.  Frohman  (1916), 
N.  Y.  Law  Journal,  Feb.  2.3. 
"Application  pendente  lite  for 
injunction.  The  plaintifT,  the 
owner  of  the  Knickerbocker  Thea- 
tre, .socks  to  enjoin  the  defendant 
from  presentint;  in  said  theatre  a 
continuou.s  motion  picture  per- 
formance at  admission  prices 
2.")  and  .')0  cents.  They  assert 
tiiat  such  action  on  the  part  of 
defendants  is  a  violation  of  the 
covenants  of  the  lease  of  tlu; 
theatre.  It  appears  that  the 
defendants  Ilayman,  Klaw  «fe 
Erlanger  and  Charles  Frohman, 
Inc.,  are  lessees  from  the  plaintilT, 
and  under  their  lease,  entered 
into  an  agreement  with  the  de- 
fendant Aitken,  granting  the 
use  of  the  theatre  to  the  defend- 
ants under  certain  restrictions. 
The  following  provisions  are  con- 
tained therein:  'The  parties  of 
the  first  part  let  unto  the  party 
of  tlie  second  part  (.Vitken)  fur 


the  purpose  of  e.\hiljiti(ms  of 
first-cla.ss  motion  pictures  only 
for  a  jHjriod  of  one  year,  com- 
mencing Sept.  1,  191"),  and  ter- 
minating August  31,  1916,  the 
Knickerbocker  Theatre.  .  .  .  The 
secontl  party  defendant  (Aitken) 
agrees  that  said  premises  are  to 
be  used  only  for  the  exhibition 
of  first-class  motion  pictures,  and 
not  otherwise,  prices  of  admission 
to  be  anil  maintained  at  the  .same 
standard  as  that  of  other  first- 
cla.ss  theatres  on  Broadway;  even- 
ing prices  to  be  25  cents  to  S2.00. 
The  second  party  (Aitken)  agrees 
further  to  use  said  theatre  as  a 
theatre  of  the  first  cla-ss  in  the 
City  of  New  York.  .  .  .  The 
jxirty  of  the  second  part  hires 
the  said  theatre  subject  to  the 
leiuse  of  the  parties  of  the  first 
part  with  the  owners  of  the  said 
building.  .  .  .'  It  is  as.scrtcd 
that  the  defendant  Aitken  and 
the  defendant  Triangle  Film  Co. 
are  violating  this  agreement  by 
offering  the  theatre  sis  a  con- 
tinuous moving  picture  house 
at  the  prices  above  stattnl,  and 
presenting  an  addition  to  motion 


240 


THE    LAW    OF   MOTION    PICTURES 


Rent  is  suspended,  when  so  covenanted,  when  the 
theatre  is  closed  by  the  authorities,  but  the  covenant 
must  be  express. ^^  Where,  however,  the  lessee  has  not 
made  any  such  reservation,  and  the  police  or  the  local 
authorities,  because  of  non-compliance  with  their  regu- 


picture  songs,  musical  numbers 
and  other  acts;  that  the  defend- 
ant, it  is  claimed,  has  further 
violated  the  agreement  by  trans- 
ferring the  said  lease  or  rights 
thereunder  to  the  Triangle  Film 
Co.  I  am  of  the  opinion  that 
the  acts  complained  of  are  not 
clearly  such  as  to  constitute  a 
breach  of  the  covenant  contained 
in  the  lease  for  violation  of  which 
this  relief  is  sought.  The  case  is 
novel  and  far-reaching  in  its  im- 
portance. It  is  a  matter  of 
serious  question  whether  or  not 
it  can  be  decided  on  affidavits. 
Through  the  introduction  of  mov- 
ing picture  and  photo  plays  into 
the  theatrical  field  there  has  oc- 
curred therein  an  evolution  in  the 
production  and  presentation  of 
plays;  in  fact,  the  entire  trend 
of  the  business  may  have  so 
evolved  as  to  permit  the  defend- 
ants to  carry  on  their  business 
as  now  being  conducted  without 
violating  the  restrictive  cove- 
nants of  the  lease.  pA'en  though 
irreparable   injury   be  shown,  in 


view  of  the  short  time  which 
the  lease  has  to  run,  unless  the 
right  of  those  seeking  the  in- 
junction is  clear  and  unmistak- 
able this  court  may  not  intervene 
to  prevent  the  use  of  the  theatre 
in  the  manner  that  it  is  now 
conducted.  The  issues  are  im- 
portant and  the  determination 
should  be  left  to  the  trial  court, 
and  the  injunction  ad  interim 
must  be  denied." 

« Lennox  v.  Curzon  (Eng.) 
( 1906) ,  22  T.  L.  R.  6 11 .  Under  a 
lease  for  a  theatre  which  was  in 
process  of  construction  it  was 
j)rovided  that  when  "closed  by 
order  of  any  superior  authority, 
etc.,"  the  rent  was  to  be  sus- 
jiended.  An  adjoining  railway 
builtling  collapsed  and  the  theatre 
structure  becoming  unsafe,  the 
London  County  Council  refused 
to  issue  a  license. 

Held,  that  the  theatre  was 
"clo.sed  by  order  of  a  superior 
authority"  and  that  the  rent  was 
susjjended. 


THEATRE    LEASES 


241 


lations,  .sliut  down  the  tlieatrc,  the  rent  reserved  accrues 
nevertheless  and  tlie  lessee  is  Uable  therefor.'® 

Where  the  theatre  is  destroyed  by  fire  before  the  com- 
mencement of  the  term  of  the  lease,  the  lessee  is  rclicv(»d 
from  Ills  obligation  thereunder.'^ 

In  Adler  v.  Miles,*^  where  the  lease  provided  that  the 
demised  i)rcmises  were  "to  be  used  and  occupied  for  the 
purposes  of  a  place  of  amusement  for  the  exhibition  of 
moving  pictures  and  for  no  other  purposes  whatsoever" 
a  city  ordinance  subsequently  enacted  making  the  giving 
of  motion  pictures  in  this  theatre  unlawful,  was  held  suf- 
ficient to  exonerate  both  the  lessee  and  his  surety  from 
the  obligation  of  paying  rent. 


**  Lwniansky  v.  Tcssier  (1912), 
213  Mass.  182;  09  N.  E.  1051. 
Tlie  dcmi.scd  premises  were  leased 
for  a  vaudeville  and  moving  pic- 
ture theatre.  Under  tlie  lease, 
the  lessee  was  required  to  make 
all  inside  repairs.  The  state 
police  notified  the  lessor  that 
unless  certain  interior  alterations 
were  made  the  licen.se  would  be 
revoked.  The  lessee,  knowing 
of  the  requirements  of  the  state 
police,  but  not  complying  with 
them  although  he  was  obligated 
so  to  do  under  his  lea.se,  cannot 
excuse  himself  from  paying  the 
rent  stipulated  under  the  lease 
when  the  license  is  revoked  be- 
cause of  non-compliant'O  with  the 
state  police  reciuiremcats. 


« Taijlur  V.  Caldwell  (Eng.) 
(1863),  3  Best.  &  8.  82G. 

*^  Adler  v.  Miles  (1910),  69 
Misc.  (X.  Y.)  601;  126  X.  Y. 
Supp.  135.  After  the  making  of 
the  lease  a  city  ordinance  was 
enacted  prohibiting  tlie  use  of 
premises  such  as  the  demised 
premises  for  the  exhibition  of 
moving  pictures.  In  an  action 
on  the  lease  against  the  surety 
of  such  lease  it  was  held  that 
neither  the  original  lessee  nor  his 
surety  wore  obligated  to  pay  rent 
after  the  |xissage  of  the  ordinance, 
tlie  court  applying  the  rule  ex- 
pressed in  the  maxim  "lex  non 
cogit  ad  impossibilia." 


242 


THE    LAW    OF   MOTION    PICTURES 


A  covenant  against  assignments  is  valid;  but  where 
there  have  been  numerous  assignees,  and  the  lessor  has 
accepted  rent  from  all,  this  would  amount  to  a  waiver 
on  the  part  of  the  lessor.  ^^ 

In  building  and  other  contracts  for  the  construction  of 
theatres,  it  is  well  to  define  with  every  degree  of  exactness 
what  the  theatre  building  is  to  be,  with  special  reference 
to  the  unique  elements  of  the  building,  such  as  the  pro- 
scenium, stage,  seats  and  so  on.^°  And  for  delay  in  such 
construction,  the  lessee  may,  in  an  action  for  the  rent, 
counterclaim  for  damages  sustained  by  him  by  reason  of 
such  delay,  ^^  or  the  lessee  is  entitled  to  maintain  an  action 


"  Nelson  Theatre  Co.  v.  Nelson 
(1913),  216  Mass.  30;  109  N.  E. 
926.  Where  defendant  had  leased 
a  theatre  to  a  tenant  with  the 
usual  covenants  against  assign- 
ments unless  consented  to  in 
writing,  and  where  the  tenant 
had  subsequently  assigned  with- 
out such  written  consent,  and 
there  had  been  subsequent  as- 
signments without  written  con- 
sents, and  the  defendant  had 
accepted  rent  from  all  these 
assignees:  Held,  that  he  would 
be  enjoined  from  ousting  the 
last  tenant,  as  his  acceptance  of 
the  rent  amounted  to  a  waiver 
of  that  clause  in  the  lease.  Held 
aUo  that  evidence  of  experts  on 
the  receipts  of  the  theatre  for  the 
past  year  as  a  basis  for  (-ompuf- 
iug  the  damages  was  admissible. 


^"Neher  v.  Viviani  (1910),  15 
N.  M.  460;  110  Pac.  695,  passes 
on  the  meaning  of  a  building  con- 
tract for  a  theatre,  and  holds  in 
particular  that  the  phrase  "a 
modern  thirty  thousand  dollar 
theatre  building"  includes  in 
addition  to  the  bare  building, 
the  usual  necessary  permanent 
equipment,  such  as  plumbing, 
heating  and  lighting  apparatus, 
seats,  curtains  and  scenery 
adapted  to  and  intended  for  use 
in  that  particular  building,  but 
not  the  piano,  furniture,  carpets, 
etc. 

^^  New  York  Academy  of  Music 
V.  Ilackdt  (1858),  2  Hilt.  (X.  Y.) 
217.  Defendant  leased  plaintilT 
premises  for  two  months,  plain- 
tiff to  use  diligence  in  completing 
the     construction     of     building. 


TH i;ai'iu;  li;asks 


243 


for  li(iui(la(('cl  damages  iiiidcr  the  contract,  where  the 
theatre  was  not  constructed  and  tlie  lessor  has  utterly 
failed  to  perform. ■'-' 


lessee  to  l)e  evicted  on  account 
of  noii-paymeiit  of  rent.  Pluiii- 
tifT  failetl  to  use  diligence  in 
conipletinfj;  the  huililinR  and  de- 
fendant failed  to  pay  rent.  Ac- 
tion was  for  rent.  Held  that 
defendant  might  counterclaim  for 
his  damages  l)y  reason  of  plain- 
tilT's  breach  in  failing  io  dili- 
gently comj)lcte  the  building; 
that  defendant  was  entitled  to 
be  allo\ve<l  in  abatement  of  the 
rent,  expenses  incurred  by  him 
in  advertising  the  performances 
aimounced  for  the  week  follow- 
ing the  eviction  but  was  not  en- 
titled to  set  o(T  damages  by 
rea.son  of  loss  of  tiie  services  of 
one  of  the  artists  who  contracted 
a  severe  cold  on  account  of  the 
unfinisheil  condition  of  the  build- 
ing as  the  gains  or  profits, 
which  the  defendant  might 
have  made  through  the  artist's 
performances,  were  too  specula- 
tive and  conjectural. 

''■^Shubirt  v.  Suiidheiin  (1910), 
13S  A.  D.  (X.  V.)  800;  123  N.  Y. 
Supp.  52!);  aff'd  203  X.  Y.  G3G; 
97  N.  E.  11 U;.  Where  a  written 
agreement  to  make  a  lease,  rental 
to    commence    when   a   buikling 


on  the  proiK-rty  wjus  completed, 
provided  that  the  les.see  was  to 
deposit  money  in  escrow  as 
security  for  the  rent,  and  the 
proposed  lessee,  having  the  neces- 
sary funds  failed  to  do  so  solely 
because  the  lessor  refused  to 
designate  a  tlepository  when  re- 
quested so  to  do,  the  lessee  may 
maintain  an  action  for  liquidated 
damages  provided  for  bj'  the 
agreement,  if  the  proposed  lessor 
put  it  out  of  his  power  to  fulfill 
the  contract  by  lea.sing  the  lands 
to  third  parties. 

It  was  held  that  the  provision 
for  liquidated  damages  was  en- 
forceable as  the  plaintifT  "might 
have  sustained  very  large  dam- 
ages which  could  not  be  proved 
with  sufficient  dcfiniteness  to 
warrant  a  recovery  thereof,  if  he 
relied  throughout  the  period  of 
the  construction  of  the  building 
on  obtaining  a  lease  of  this 
theatre,  and  then  did  not  receive 
it."  It  is  not  essential  to  the 
validity  of  a  liciuidated  damage 
clause  that  it  be  reciprocal. 
Interest  may  be  recoveral  on 
stipulated  damages. 

Fur  pcnattie-'i  for  dvfeclipc  slruc- 


244 


THE    LAAV    OF   MOTION   PICTURES 


Agreements  between  the  theatre  owner  and  adjoining 
property  owners  to  break  through  walls  for  the  purpose 
of  making  exits  and  vestibules  must  be  made  as  provided 
for  by  the  ordinances  of  the  local  authorities.  Otherwise 
the  contract  may  be  held  void  and  unenforcible,  and  a 
recovery  thereon  will  be  denied."  In  a  similar  suit 
brought  in  equity  where  the  theatre  owner  had  not  fully 
performed  under  his  contract,  relief  was  denied  him.^* 

tural  defects  see:  St.  James  Hall     the    protection    of    human    life. 
Co.  V.  London  Co.  Council  (Eng.)      Where   a   contract   on   its   face, 


(1901),2K.  B.  250. 

^^Hart  V.  Citij  Theatres  Co. 
(1911),  71  Misc.  (N.  Y.)  427;  128 
N.  Y.  Supp.  678;  reversed  156 
A.  D.  (N.  Y.)  673;  141  N.  Y. 
Supp.  386;  judgment  of  Appellate 
Division  reversed,  and  that  of 
trial  affirmed  in  215  N.  Y.  322; 
109  N.  E.  497.  A  contract 
between  the  owner  of  a  theatre 
and  the  owner  of  an  adjoining 
non-fireproof  building  to  cut 
through  the  wall  which  separated 
the  buildings,  for  an  exit  through 
the  latter  building,  was  held 
to  violate  the  building  code 
of  the  City  of  New  York  and 
the  owner  of  the  latter  building 
was  not  permitted  to  maintain 
an  action  to  recover  the  agreed 
compensation. 

"Courts  will  not  bo  astute  to 
sustain  contracts  when  the  effect 
will  be  to  weaken  the  ofTicacy  of 
law  and  regulations  designed  for 


whether  so  intended  by  the  par- 
ties or  not,  offends  against  stat- 
utes intended  to  promote  public 
safety,  the  courts  will  not  en- 
force it"  (excerpt  from  opinion  in 
215N.  Y.  322;  109  N.  E.  497). 

^'^  Keener  v.  Moslander  (1911), 
54  So.  (Ala.)  881.  Plaintilf 
owned  a  theatre  and  motion 
picture  house  in  Mobile.  De- 
fendant conducted  a  cand}'^  busi- 
ness in  the  rear  of  the  theatre — 
the  parties  contracted  to  give 
l)IaintifT  a  right  of  way  through 
defendant's  storeroom  into  the 
theatre,  after  which  plaintilT 
constructed  improvements  and 
made  an  entrance  and  vestibule 
through  the  storeroom.  Defend- 
ant then  erected  a  board  fence, 
cutting  oiT  the  entrance  and 
egress  of  patrons  and  this  suit 
for  injunction  was  brought.  Re- 
lief denied  upon  the  ground  tliat 
l)laintiir   liad    failed    to   perform 


THEATRK    LEAftES 


245 


WTierc  a  building  was  rented  for  the  purpose  of  heiriy; 
conducted  as  a  motion  j)icture  theatre,  the  landlord  could 
not  be  held  to  have  covenanted  to  have  allowed  the 
lessee  an  exit  from  the  rear  through  property  owned  by 
the  landlord  where  such  property  was  not  included  in  the 
lease.-'' 

It  is  not  always  an  easy  matter  to  determine  whether 
the  contract  between  the  parties  is  a  lease  or  a  license. 
In  a  late  case  the  question  was  fully  discussed,'*'^  but  the 
agreement  there  construed  was  rather  unusual.  In 
Leavilt  V.  Windsor  Co.,'''  it  was  held  that  where  in  addition 


liis  part  of  the  contract,  and  so 
could  not  obtain  relief  in  etiuity. 

o'- Kaiser  v.  ('iiibcrg  (1909),  130 
A.  D.  (X.  Y.)  254;  114  N.  Y. 
Siipp.  716. 

As  to  the  liability  of  the  oivner  of 
a  theatre  for  repairs  made  therein, 
vndcr  direction  of  the  lessee,  sec 
V(denli  V.  A'.  }'.  Theatre  Co. 
(1917),  X.  Y.  Law  Journal, 
April  Gth. 

">  Con^ey  Island  Co.  v.  M'lntyrc- 
Paxton  Co.  (1912),  200  Fed. 
{C.  C.  A.)  901.  An  agreement 
mndc  for  the  use  of  an  amuse- 
ment park  construed,  and  its 
tenure  dcfinod. 

Whetiicr  the  ri^lits  of  a  con- 
cessionaire amounted  to  a  license 
revocable  at  will  of  owner,  (puvre. 

"  Lcavitt  V.  Wind.'ior  Land  ^\: 
Inrestment  Co.  (1S9:?).  'A  Fed. 
(C.  C.  A.)  439.    Where  contract 


jJrovides  that  defendant  furnish 
buildin};  and  pay  certain  of  its 
expenses  and  the  plaintiff  give 
his  time  and  skill  in  carrying  on 
a  theatre  therein  and  to  act  as 
manager  of  such  theatre,  the 
tlefendant  to  receive  a  fixed  sum 
as  rent  and  in  addition  thereto 
one-half  of  the  net  profits;  the 
contract  also  providing  that  the 
los.ses  be  borne  equally  by  the 
jiartics  it  was  held  that  a  partner- 
ship had  been  created  though 
the  parties  had  referred  to  them- 
selves as  lessee  and  lessor.  See 
also  Section  02. 

On  the  question  of  the  dissolu- 
tion of  such  joint  venture  see: 
Shuberl  v.  Laughlin  (1907),  107 
X.  Y.  Supp.  708.  Plaintiff  con- 
tributed his  theatre  lease  and 
defendant  his  skill  as  a  manager 
and    booking-agent    in    a    joint 


240  THE    LAW    OF   MOTION   PICTURES 

to  rent  the  lessor  was  to  receive  a  stipulated  portion  of 
the  profits,  and  pay  certain  charges  and  to  share  in  the 
losses,  the  relation  was  that  of  partners  or  joint  venturers, 
and  not  that  of  lessor  and  lessee. 

The  lessee  may  sell  out  his  interest  in  the  theatre  to 
a  third  party;  and  in  such  a  contract  a  covenant  by  him 
not  to  engage  in  business  in  a  limited  territory  for  a 
limited  term  has  been  held  valid  and  binding.  And 
where,  in  \'iolation  of  such  covenant,  he  subsequently 
attempts  to  manage  a  theatre  witliin  the  prohibited 
area  during  the  prescribed  term,  he  will  be  en- 
joined. ^^ 

However,  injunction  is  not  a  remedy  usually  favored 
by  the  courts  with  respect  to  leases  and  their  breaches, 
for  to  do  so  ''would  be  to  compel  supervision  by  the  courts 
for  a  long  term  of  years  and  the  enforcement  of  negative 
covenants  which  would  in  effect  be  to  decree  specific 
performance."  ^^ 

Where  the  owner  of  the  theatre  had  contracted  first 
with  one  company,  then  with  another  company,  for  the 

venture.     In  an  action  brouglit  good   will   and    business   to   the 

by  one  of  the  partners  an  order  Metropolitan     Opera     Co.       He 

appointing    a    receiver    was    re-  covenanted    not    t(j    engage    in 

versed  on  the  ground  that  plain-  grand  opera  in  New  York  City 

tiff  was  not  asking  for  a  dissolu-  for  ten  years.     On  injunction  to 

tion,  and  that  the  proper  parties  restrain    (lef(>ndant    from    giving 

had  n(jt  been  brought  in.  grand    opera,    held,  that   such  a 

"  Metro politan  Opera  v.  Ham-  covenant  was  not  in  restraint  of 

merstein  (1014),  102  A.  D.  (N.  Y.)  trade,  and  was  reasonal)le. 

691;  147  N.  Y.  Supp.  ry.V2.     I)e-  '•^  Shuhrrt  v.  Woodirnrd  (1909), 

fcndant    Oscar    Ilanimerstcin    in  1(17  l''e(l.  (C  C.  A.)  47. 
1914  .sold    his    opera  properties, 


THKATRK    LEASES  247 

lease  of  his  theatre  for  tlie  siuiic  tcnii,  injunction  was 
likewise  refused/'" 

In  an  action  between  the  lessor  and  lessee  of  a  theatre 
who  had  agreed  to  di\'ide  the  profits  of  a  i)lay  to  ))e  pro- 
duced therein,  evidence  of  the  previous  receipts  of  the 
theatre,  of  the  popularity  of  the  production  in  places 
where  it  had  already  been  produced  and  the  probable 
amount  of  the  receipts  was  inadmissible."^ 

But  in  an  action  on  the  breach  of  a  lease  for  a  theatre, 
e\idence  of  experts  on  the  receipts  of  the  theatre  for  the 
past  year  as  a  basis  for  computing  the  damages  was  heltl 
admissible. "- 

Wliere  the  issue  involved  is  whether  the  performances 
given  were  in  compliance  with  the  contract,  declarations 
of  the  patrons  at  the  very  moment  they  are  leaving  the 
theatre,  of  their  reasons  for  so  doing,  are  a  part  of  the 
"res  gestic"  and  admissible."^ 

Wliere  a  defendant  was  sued  for  services  rendered  and 
the  question  was  whether  he  or  liis  landlord  was  lial)le 

<'o  Welly  V.  Jacobs   (1S9S),  171  '^^  Moss    v.    Tompkins    (1893), 

111.  G21;  49  N.  E.  723.    PlaintilT,  GO  Hun  (X.  Y.),  288;  23  X.  Y. 

manager  of  "The  Black  Crook"  Supp.  023;  aff'il  144  X.  Y.  659; 

entered  into  a  contract  with  de-  39  X.  K.  858.      In  this  connec- 

fendant  for  the  use  of  the  hitter's  tion,  see  Sections  21  anil  49. 

theatre.    Subsequently  defendant  »-  \ehon  Theatre  Co.  v.  Xehon 

entered    into    another    contract  (1913),  216  Mass.  30;  109  X.  K. 

with  a  rival  "The  Black  Crook"  926.     See   also:    lioscnwasser    v. 

company  for  the  use  of  his  theatre  Amusement  Enterprises  (1914),  8.S 

for   the   same   iKTiod.      PlaintitT  Misc.  (X.  Y.)  57;  1.50  X.  Y.  Supp. 

sued   for   injunction    to   restrain  561. 

such   use  of   the  theatre.     Held  ^Tharlei/y.  I'oltlwjT {l{m),l\S 

untenable.  Wis.  258;  95  X.  W.  124. 


248 


THE    LAW   OF   MOTION    PICTURES 


therefor,  it  was  held  that  the  lease  between  himself  and 
the  landlord  was  admissible  in  evidence.^^  Where  the 
contract  was  evidenced  by  a  letter,  oral  testimony  show- 
ing a  quahfication  of  the  letter  was  held  inadmissible.^^ 

The  question  has  occasionally  arisen  whether  a  munic- 
ipality has  the  right  to  establish  and  maintain  a  place  of 
amusement. 

In  a  recent  Ohio  case  it  was  held  that  the  powers  to  be 
exercised  by  a  municipality  did  not  include  the  main- 
tenance of  a  motion  picture  theatre.^^ 


"  Miller  v.  Lawrence  (1895),  13 
Misc.  (N.  Y.)  130;  34  N.  Y. 
Supp.  161. 

^^  Zerralin  v.  Ditson  (1875), 
117  Mass.  553.  Plaintiff  sued 
for  services  rendered  in  conduct- 
ing of  "The  World's  Peace  Ju- 
bilee." Defendant  set  up  a 
special  contract  whereby  the 
services  were  rendered  upon  the 
understanding,  expressed  in  a 
letter ,  that  the  management  would 
not  be  responsible  in  case  the 
music  festival  resulted  in  a  loss. 

On  the  trial  defendants  offered 
the  letter  in  evidence  and  plain- 
tiff attempted  to  give  oral  testi- 
mony to  show  a  (lualification  of 
the  terms  of  the  letter,  which 
was  rejected  as  varying  the  ex- 
press terms  of  tli<'  letter. 

Held  on  appeal   that  the  oral 
evidence  was  propc^rly  rejected. 
'■^  Slate  V.  hynch  (May,  I'.H:})^ 


102  N.  E.  (Ohio)  670.  "Whether 
a  municipality  acquires  authority 
'to  exercise  all  the  powers  of 
local  self-government'  by  adopt- 
ing a  charter,  or  adopts  a  charter 
as  an  indispensable  mode  of 
exercising  the  authority,  the  pow- 
ers to  be  exercised,  being  govern- 
mental, do  not  authorize  taxa- 
tion to  establish  and  maintain 
moving  picture  theatres." 

The  decision  was  by  a  divided 
court.  A  strong  dissenting  opin- 
ion was  written  by  Judge  Wivnii- 
maker. 

See  also:  Smith  v.  City  of  Raton 
(1914),  140  Pac.  109  (N.  M.) 
Under  the  powers  granted  to 
cities  and  towns  by  the  statute 
to  erect  all  needful  buildings  for 
their  use,  such  municipalities  are 
limited  to  the  erection  of  such 
needful  buildings  as  may  be  re- 
(juired    for    puljlic    uses    or    for 


THLATUK    LKASES 


249 


In  California  a  dofision  was  rondorod  a  month  after 
the  opinion  in  tlic  Oliio  case  was  luindcd  down,  hoUUiif; 
that  a  municipal  corporation  uiifiht  have  the  power  to 
erect  and  maintain  a  i)la('o  of  \m\}\\r  aniusenuMit,  although 
it  could  not  contract  with  a  private  corporation  for  the 
erection  of  the  buildings  by  the  private  corporation  on 
land  belonging  to  the  municipality,  where  the  property 
was  to  be  managed  by  a  board  of  trustees,  a  majority  of 
which  were  not  to  be  selected  by  the  municipality.''" 
municipal  uses  and  purposes  as  pality  may  devote  money  for 
distinguished  from  private  or 
quasi  public  use.  Where  the 
paramount  purpose  is  to  use 
fiuch  building  for  theatrical  per- 
formances, "legislative  autlior- 
ity  is  lacking  in  this  state 
for  the  erection  of  such  buildings 
by  cities  and  towns."  See  also: 
Tncslccs,  dr.,  v.  Leu'/.s  (1012),  r>:j 
Fla.  G91. 

See  in  this  connection  Wordcti 
V.  New  Bedford  (1.S81),  131  Mass. 
23,  where  it  was  held  that  if 
the  building  was,  in  good  faith, 
erected  for  municii)al  purposes 
but  later  became  vacant,  the 
municipality  had  a  right  to  ix^r- 
mit  its  uses  for  a  i)rivate  enter- 
prise. See  also:  Bryant  v.  Logan 
(1904),  oG  W.  Va.  141;  49  S.  E. 
21. 

"'  I'Jgnn  v.  San  Francisco  (June, 
1913) i  Km  Cal.  h7(\-  1.33  Pac  294. 

The  court  cites  in  support  of 
the    proposition   that   a   numici- 


the  pleasure  and  amusement  of 
its  inhabitants:  IhdiUnrd  v.  Taun- 
ton (1886),  140  Mass.  467;  5 
N.  E.  157;  Denver  v.  Hallett 
(1905),  34  Col.  393;  83  Pac.  1066; 
Kingman  v.  Brockton  (1S91),  153 
Ma.ss.  255;  26  N.  E.  998;  Spires 
V.  Los  Angeles  (1906),  150  Cal. 
64;  87  Pac.  1026;  Laird  v.  Pitts- 
burg (1903),  205  Pa.  St.  1;  54 
Atl.  324. 

The  court  cites  the  following 
cases  in  supp(jrt  of  the  proposi- 
tion that  the  public  use  of  pub- 
lic property  cannot  coexist  with 
private  management  and  control 
of  such  property.  California 
Academy  v.  San  Francisco  (1895), 
107  Cal.  334;  40  Pac.  426;  Home, 
etc.,  of  the  Inebriate  v.  San  Fran- 
cisco (1898),  119  Cal.  534;  51 
Pac.  9.50;  Fm  Societa,  etc.,  v.  San 
Francisco  (1!HK)).  131  Cal.  169; 
G.3  Pac.  174. 

See    also    in    this    connection: 


250  THE    LAW   OF   MOTION    PICTURES 

Lessees  of  theatres  are  customarily  required  to  deposit 
a  sum  of  money  with  their  lessors  as  security  for  the  due 
performance  of  all  of  the  provisions  of  the  lease. 

The  agreement  sometimes  provides  that  in  case  of  any 
default  by  the  lessee,  the  lessor  may  retain  the  moneys 
deposited  with  him  as  hquidated  damages.  The  com'ts 
will  not  be  bound  by  the  language  of  the  parties.  If 
the  result  is  to  penahze  the  lessee  the  courts  will  permit 
him  to  recover  back  his  deposit. 

In  Stimpson  v.  Minsker  Realty  Co.,  the  plaintiff  as 
receiver  brought  an  action  to  recover  back  $68,500,  part 
of  a  deposit  of  $72,000,  made  by  the  lessee  with  the  lessor 
under  a  lease  for  a  theatre.  In  view  of  the  fact  that 
the  amount  sought  to  be  retained  was  out  of  all  pro- 
portion to  the  damages  sustained  by  the  defendant  the 
court  was  constrained  to  treat  the  amount  as  a  penalty, 
notwithstanding  the  express  provision  of  the  lease  that 
the  lessor  was  entitled  to  retain  the  entire  amount  as 
liquidated  damages  in  the  event  of  a  breach.^^ 

An  action  to  recover  back  a  deposit  under  a  lease  may 
be  maintained  only  upon  the  expiration  of  the  period  of 

French  v.  Quincy  (1861),  3  Allen  loss  in  case  of  a  breach  as  viewed 

(Mass.),  9;  Stone  v.  Oconomowoc  at  the  time  the  lease  was  made. 

(1888),  71  Wis.   155;  36  N.  W.  In  the  event  of  a  breach  by  the 

829;  Jones  v.  Sanford  (1877),  66  lessee,   the   lessor   could   assume 

Me.  fyH!)]  Sugar  V.  Monroe  ilW2),  absolute  control  of  the  premises 

108  La.  677;  32  So.  961.  and  relet  them  for  its  own  ac- 

««  Stimpson   v.   Miasker  Realty  count.    It  is  hardly  credible  that 

Co.  (1917),177A.  D.  (N.  Y.).536.  it   would   fail   to   relet   them   to 

"We  also  think  that  the  S72,0()()  a(lvant:if!;(',  situated  as  thoy  were 

retained  by  the  h.'ssor  is  out  of  in   the   midst   of   numerous  and 

all    proportion    to   the   probable  theatre  going  population." 


THEATRE    A    NUISANCE 


251 


the  lease,  unless  every  ccmtinKciicy  iiiidcr  wliich  the  de- 
fendant might  have  had  a  claim  for  damages  agaiast 
said  fund  has  been  exhausted.*^' 

The  lessee  may  maintain  an  action  for  breach  of  the 
contract  before  the  date  arrives  for  his  entry  upon  the 
premises,  where  he  is  informed  prior  thereto  by  the  lessior 
that  he  will  not  be  permitted  to  enter  upon  such  ])remises."° 

The  lessor,  when  suing  for  rent  on  a  guaranty,  is  not 
required  to  prove  that  the  defaulting  tenant  was  in 
actual  physical  possession  of  the  premises."' 


Section  80. — Theatre  a  nuisance. 
A  theatre  is  not  a  nuisance  per  se.''- 


But  under  certain 


•"''^  Hal  pern  v.  Manhattan  Ave. 
Theatre  Corp.  (191G),  173  A.  I). 
(N.  Y.)  610. 

■'o  Grail  V.  McVickar  (1874),  S 
Biss.  7,  10  Fed.  Cas.  No.  5,708. 
The  performances  were  to  com- 
mence Feb.  9tli.  It  wa.s  hcUl 
that  a  complete  cause  of  action 
accrued  prior  to  that  date  where 
the  ies.see  notified  the  lessor  tliat 
he  would  not  comply  with  the 
terms  of  tlic  agreement. 

7'  Wooils  V.  Broder  (1908),  11 3 
N.  Y.  Supp.  335. 

For  a  case  tvhere  a  bar  privilege 
was  leased  see:  Day  v.  Lun/i  Park 
(1912),  174  111.  App.  477.  A 
concession  granted  hy  the  de- 
fendant, an  amusement  park, 
for  a  bar  privilege,  which  con- 
tains    a     restrictive     covenant 


against  its  assignment  to  third 
I)arties,  is  personal  and  does  not, 
in  the  event  of  bankruptcy  of 
the  bar,  i)ass  to  the  trustee  in 
bankruptcy. 

"  City  of  Indianapolis  v.  Miller 
(1907),  168  Ind.  285;  80  N.  E. 
()26.  "While  theatres  are  sub- 
ject to  the  police  ix)wer  of  the 
state  in  some  particulars,  yet 
it  can  by  no  means  be  said  that 
the  business  of  conducting  a 
playhouse  is  in  its  own  nature  a 
nuisiince.  1  Hawk.  P.  C.  693; 
Joyce,  Nuisances,  Section  115; 
Wood,  Nuisances,  3d  Ed.,  Sec- 
tion 52." 

City  of  Chicago  v.  Weber  (1910), 
246  III.  .304;  92  N.  E.  8.59.  "A 
city  may  declare  and  abate  nui- 
sances, but  a  theatre  Is  not  a 


252 


THE    LAW    OF   MOTION    PICTURES 


conditions  it  may  easily  become  one,  as  when  large  crowds 
gather  in  front  and  extend  in  line,  boisterous  patrons 
congregate,  noises  issue  from  the  theatre,  and  the  like. 

The  most  frequent  complaint  is  that  great  crowds  are 
attracted  to  the  theatre,  and  extend  in  long  queues  down 
the  street,  obstructing  entrance  upon  and  egress  from 
adjacent  property,  and  interfering  with  the  free  use 
thereof. 

Where  tliis  is  a  common  occurrence,  it  unquestionably 
constitutes  a  nuisance,  and  may  be  abated  by  appropriate 
remedy.^^    This  is  true  not  only  of  a  theatre,  but  of  other 


nuisance  per  se,  and  a  declaration 
by  the  city  would  not  make  it  a 
nuisance  unless  it  was  such  in 
fact.  [Village  of  Des  Plaines  v. 
Poyer  (1888),  123  111.  348;  14 
N.  E.  677.]" 

To  Ihe  same  effect:  1  Hawkins 
P.  C.  (8th  VaI),  693;  Barber  v. 
Penleij  (Eng.)  (1893),  2  Ch.  447; 
Bellamy  v.  Wells  (Eng.)  (1890), 
63  L.  T.  N.  S.  635;  Ex  parte 
Whitxrell  (1893),  98  Cal.  73;  32 
Pac.  870. 

Holt,  C.  J.,  in  Betlerion's  Case 
(1695),  Holt  K.  B.  538;  5  Mod. 
142;  5  Kin.  625.  "It  hath  been 
holdnn  that  a  common  j)layhousG 
may  be  a  nuisance  if  it  draw  to- 
gether such  a  number  of  coaches 
or  people,  etc.,  as  to  prove 
generally  inconvenient  to  the 
phicps  ndjaceut.  And  it  seems 
that    playhouses,    having    been 


originally  instituted  with  a  laud- 
able design  of  recommending 
virtue  to  the  imitation  of  the 
people,  and  exposing  vice  and 
folly,  are  not  nuisances  in  their 
own  nature,  but  may  only  be- 
come such  by  accident." 

"  Lyons,  Son^  &  Co.  v.  Gulliver 
(Eng.)  (1913),  C.  A.  (1914),  ICh. 
631;  30  T.  L.  II.  75.  Defendant 
conducted  a  theatre.  A  large 
number  of  people  assembled  in 
and  about  the  theatre  before  each 
performance.  Long  lines  were 
formed  extending  for  some  dis- 
tance from  the  theatre,  five  per- 
sons abreast.  Plaintiff's  premises 
were  adjacent  to  tho.se  of  de- 
fendant. Held  that  the  collec- 
tion of  such  crowds  constituted 
an  actionable  nuisance,  and  that 
the  failure  of  pohce  to  korp  jm-oikm* 
gaps  for  passage  of  public  and 


THEATRE    A    NUISANCE 


253 


fomis  of  public  exhibition  ai 
or  line  need  not  necessarily 

rcRulute     the     crowds     was     no 
defense. 

Dissent iiit;  o|)ini<iM  by  Philli- 
niore,  L.  J.,  that  every  trader 
liad  the  right  to  make  his  sliop 
as  attractive  as  jx)s.sible  and 
was  not  responsiljle  for  crowds 
who  collected  before  liis  shop; 
that  defendant  was  not  respon- 
sible for  collection  of  crowd  be- 
fore the  hour  at  which  they  were 
invited  to  attend;  that  it  was 
the  iluty  of  the  polkc  to  prevent 
obstruction  of  passageways;  tliat 
fonnation  of  a  line  or  queue  did 
not  constitute  an  actionable  nui- 
sance. 

Barber  v.  Penley  (Eng.)  (1893), 
62  L.  J.  Ch.  Div.  623.  Plaintiff 
kept  a  lodging  house  adjacent  to 
defendant's  theatre.  She  sought 
to  enjoin  defendant,  claiming 
that  access  to  her  premises  was 
shut  off  by  the  great  crowds  wliich 
collected  in  front  of  the  theatre 
two  hours  before  it  opened. 

The  court  held  that  if  after 
the  opening  night  of  the  .show 
crowds  continued  to  gather  in 
front  of  defendant's  theatre,  that 
would  constitute  a  nuisance;  but 
as  it  appeared  from  the  affidavits 
that  the  police  had  taken  con- 
tnjl  and  no  nuisance  existed  at 


id  advertising."'    The  crowd 
be  noisy  or  unruly  or  boi.s- 

the  time  when  the  application 
for  the  injunction  wtus  made,  no 
injunction  was  neces.sary  and 
lu'nce  refused.  Defendant,  how- 
ever, was  required  to  pay  plain- 
tiff's costs  of  the  action.  To  the 
same  effect:  Wagstnff  v.  Edison 
Bell  (Eng.)  (1S93),  10  T.  L.  R.  80. 

Inchbuld  v.  Robimon  (Eng.) 
(1869),L.  R.  4Ch.  388.  A  tem- 
porary injunction  was  refused 
because  of  insufficient  evidence 
before  the  court,  although  it  a{>- 
proved  of  the  rule  of  law  "  tliat  the 
collecting  of  crowds  immediately 
before  a  residence,  so  as  to  block 
up  the  approaches  to  it,  might 
be  a  nui.sance,  and  that  if  the 
collection  of  those  crowds  was 
to  be  attributed  to  the  act  of  a 
])articular  individual,  that  in- 
dividual might  be  restrained  from 
the  commission  of  that  act." 
The  statement  of  the  law  by 
Lord  Cairn  as  above  quoted 
was  approved  on  apixial  by  Lord 
Justice  Selwj'n. 

Walker  v.  Brewster  (Eng.) 
(1867) ,  L.  R.  5  E(i.  2.-).  Held  that 
the  collection  of  large  crowds  in 
front  of  defendant's  anuiscment 
resort  constituted  a  nuisance  and 
should  be  enjoined, 

'*  Sfiaw's  Jcnclnj  Shop  v.  .V.  )'. 


254 


THE   LAW   OF   MOTION   PICTURES 


terous;  its  mere  presence  in  sufficient  numbers  to  inter- 
fere with  the  adjoining  owner's  rights  constitutes  the 
nuisance. 

Where  a  place  of  amusement  is  so  conducted  that 
noises  issue  therefrom  so  as  to  disturb  the  peace  and  rest 
of  the  neighbors,  it  becomes  a  nuisance,  whether  such 
noises  are  caused  by  the  patrons  or  by  the  performers^^ 


Herald  (1915),  170  A.  D.  (N.  Y.) 
504;  156  N.  Y.  Supp.  651.  The 
maintenance  of  an  automatic 
baseball  playograph  which  caused 
the  collection  of  thousands  of 
spectators  and  impeded  traffic 
to  the  extent  of  requiring  the 
presence  of  a  large  number  of 
police  officers  and  interfered  with 
the  ingress  to  and  egress  from 
plaintiff's  store  constituted  a  nui- 
sance, for  which  plaintiff  was 
entitled  to  damages,  and  if  not 
abated  at  time  of  trial,  to  an 
injunction. 

Jaques  v.  Natl.  Exhibit  Co. 
(1884),  15  Abb.  N.  C.  (N.  Y.) 
250.  It  was  held  that  a  puppet 
show  in  a  window  for  advertising 
purposes,  which  drew  together 
crowds  of  persons,  was  a  nuisance. 
Bellamy  x.WcU.siKnfjr,)  (1S90), 
63  L.  T.  N.  S.  Chir,.  The  assem- 
blage of  large  groups  of  persons 
before  defendant's  club  wlioroin 
boxing  exhibitions  wen-  cdii- 
ducted  was  licld  to  be  a  nuisance. 
Rex  V.  Carlile  (Eng.)  (bSlil),  0 


C.  and  P.  636.  Defendant  ex- 
hibited some  effigies  in  his  win- 
dow, which  caused  the  collection 
of  large  crowds  in  front  of  the 
window  and  obstructed  passage 
along  the  street.  Held  a  nuisance. 
Rex  V.  Moore  (Eng.)  (1832),  3 
B.  &  Ad.  184.  The  collection  of  a 
large  number  of  persons  on  the 
road  leading  to  defendant's  shoot- 
ing grounds  was  held  to  be  a 
nuisance.  The  court  said:  "If 
a  person  collects  together  a  crowd 
of  people  to  the  annoyance  of  his 
neighbors,  that  is  a  nuisance  for 
which  he  is  answerable." 

"  Cluncy  V.  Lee  Wai  (1896),  10 
Hawaii,  319.  The  playing  of 
instruments  at  defendant's  thea- 
tre from  which  such  noises  ema- 
nated as  interfered  with  plain- 
tiff's slumber  was  enjoined. 

.Sec  also:  Penrose  v.  Nixon 
(1891),  140  Pa.  St.  45;  21  Atl. 
364,  where  injunction  was  re- 
fused to  restrain  noises  caused 
by  tlie  shifting  of  s(;enery. 

Village  of  Dea  IHuims  v.  Foijer 


THEATRE    A    NUISANCE 


255 


The  close  proximity  of  the  theatre  to  a  church  has  also 
been  held  to  constitute  a  nuisanceJ^  So,  to(^,  where 
l)atr()ns  wore  continually  trespassing  on  the  adjacent 
owner's  j)roperty.^^ 


(ISSN),  12;i  III.  HAS;  14  X.  E.  677. 
Where  the  noise  and  commotion 
of  a  public  resort  reaches  such 

II  point  as  to  interfere  with  the 
rights  of  the  public,  they  will 
constitute  a  nuisance. 

CommouivcaUh  v.  Cincinnati, 
etc.,  Rd.  Co.  (1908),  139  Ky.  429; 
112  S.  W.  613.  An  indictment 
charging  that  defendant  per- 
mitted the  congregation  of  large 
numbers  of  i)crsons  at  its  public 
resort  on  and  near  a  public  high- 
way, who  made  loud  noises,  and 
otherwise  misbeiiaved  themselves 
to  the  discomfort  and  annoyance 
of  the  inhabitants  residing  in  the 
vicinity,  sufficiently  alleged  acts 
constituting  a  nuisance. 

See  also:  Cramer  v.  Klein 
(1908),  127  A.  D.  (N.  Y.)   146; 

III  N.  Y.  Supi).  469;  Jung  Brew- 
ing Co.  V.  Conintonirealtk  (li)06), 
123  Ky.  507;  96  S.  W.  595;  Lerin 
V.  Coudmn  (1906),  191  Mass. 
341;  77  N.  E.  718;  Palestine  v. 
Minor  (1905),  86  S.  W.  (Ky.)  695; 
Toim  of  Davis  v.  Doris  (1S95), 
40  W.  Va.  464;  215  8.  K.  90(); 
Schleuter  v.  Billingheiiner,  9  Ohio 
Dec.  (llepr.)  513;  Paris  v.  Coni- 


vionieenlth,  4  Ky.  Law  Rep.  597; 
Jenkin.'i  v.  Jncksun  (Eng.)  (1888), 
40  Ch.  D.  71. 

^»  Nahaer  v.  City  of  Chicago 
(1915),  271  111.  288;  HI  X.  E. 
119.  Held  that  a  motion  picture 
theatre  within  200  feet  of  a 
church  constituted  a  nuisance. 

Hamlin  v.  Bender  (1915),  92 
Misc.  (X.  Y.)  16;  155  X.  Y. 
Supp.  963;  affd  173  A.  D.  (X.  Y.) 
996.  Where  large  crowds  con- 
gregate about  the  entrance  of  a 
moving  picture  theatre  to  such 
an  extent  as  to  cause  at  times 
congestion  of  travel  in  front  of 
the  building  and  where  those 
attending  a  church  in  the  im- 
mediate vicinit}'  of  the  theatre 
arc  called  ujmju  to  pa.ss  and  re- 
pass it,  an  injunction  may  be 
granted  restraining  the  operation 
of  the  theatre,  on  .Sundays,  as  a 
nuisance. 

^  Cronin  v.  Bloewecke  (1899), 
58  X.  J.  E(i.  313;  6:3  At).  605. 
Defendants  conducted  bjisel)all 
games  at  their  park.  A  number  of 
balls  fell  u|K)n  plaintilT's  premis»>s 
and  persons  tre^spa.ssed  thereon 
to  recover  the  balls.     Injunction 


256  THE    LAW   OF   MOTION   PICTURES 

Section  81. — Franchise  and  booking  agreements. 

Many  plays  are  booked  tlu'ougli  so-called  "booking 
circuits."  The  chcuit  company  makes  agreements  with 
the  owners  of  theatres,  whereby  it  agrees  to  furnish  them 
with  companies  of  players  together  with  the  plays  cus- 
tomarily produced  at  such  theatres,  and  the  theatre 
proprietors  agree  to  pay  to  the  performing  companies  a 
specified  compensation,  which  is  usually  a  percentage  of 
the  gross  receipts.    The  theatres  are  known  as  the  circuit. 

The  circuit  company  thereupon  enters  into 'agreements 
with  managers  of  performing  companies,  the  agreements 
being  kno\\Ti  as  "franchises,"  in  which  it  agrees  to  secure 
bookings  for  the  managers'  productions. 

The  circuit  company  is  the  agent  of  the  theatre  owner 
for  whom  it  arranges  bookings.'^  This  becomes  important 
on  the  question  of  suit.  WTiere  the  owner  of  the  theatre 
has  breached  the  terms  of  the  contract  and  has  refused 

issued  restraining  defendants  from  distinct  from  that  suffered  by- 
permitting  ball  games  to  be  con-  him  in  common  with  the  pubUc. 
ducted  in  such  manner  as  to  ''» hilerslate  Amusement  Co.  v. 
annoy  and  injure  plaintiff,  either  Albert  (1913),  161  S.  W.  (Tenn.) 
because  of  the  driving  or  dropping  488.  Plaintiff  operated  a  book- 
of  balls  upon  the  premises  or  by  ing  agency  in  Chicago.  Defend- 
ixirmitting  the  collection  of  idle  ant  operated  a  theatre  in  Ten- 
or disorderly  persons  in  the  nessee.  Plaintiff  booked  certain 
•  streets.  acts  for  defendant  for  which  the 
The  rule  of  law  is  that  Courts  latter  became  indebted  to  it  in 
of  iMiuity  will  restrain  an  existing  a  sum  of  money, 
or  threatened  nuisance  at  the  Held  tliat  jilaintiff  was  the 
suit  of  the  people  by  their  attor-  agent  of  the  def(Mulant  to  book 
ncy  general,  or  of  a  private  in-  these  acts  for  which  it  was  to 
dividual  who  sustains  spoci.-d  receive  SIO  a  week  and  5%  of  the 
and    i)eculiar    injury    therefrom  amounts  paid  to  the  troupes. 


THEATRE    A    NUISANCE  257 

to  pay  the  manager  of  the  company  whose  play  has  been 
booked  for  his  theatre,  he  may  be  directly  sued  by  the 
manager.  There  is  privity  of  contract  between  the  par- 
ties, and  the  manager  may  allege  the  making  of  the 
contract,  through  the  medium  of  the  circuit  company,  al- 
though in  fact  one  contract  was  made  between  the  man- 
ager and  the  circuit  company,  and  another  between  the 
circuit  company  and  the  theatre  owner. 

A  burlestiue  booking  circuit  which  opened  a  theatre  in 
I)roximity  to  the  plaintiff's  theatre  and  thereby  forced  it 
to  shut  down,  was  held  not  guilty  of  conspiracy,  since  it 
had  done  notliing  illegal,  and  its  motives  were  imma- 
terial.^^ 

A  booking  agent  will  not  be  compelled  to  specifically 
])erform  its  contract  and  book  through  its  offices  acts 
for  a  theatre  proprietor,  as  that  would  reciuire  the  con- 
tinuous supervision  of  the  court,  and  a  court  of  equity 
will  not  assume  such  a  duty.^° 

^^  Rosenmu  v.   Empire  Circuit  motive  which  induced  such  act 

(1909),  131  A.  D.  (X.  Y.)  429;  was  nmlicious." 

115  N.  Y.  Supp.  511.    Action  by  *^  Hammerslein  v.  United  Book- 

})luinti(T  as  Receiver  of  the  Court  ing   Offices    (1915),   N.   Y.    Law 

Street  Theatre  for  a  conspiracy  Journal,     Nov.     4.       Defendant 

to  bring  about  tlie  ruin  of  that  had   entered   into  an  agreement 

theatre  by  the  defendant  which  with   a   number   of   owners   and 

controlled   a   burlesque   booking  managers  of  vaudeville  theatres 

circuit.  whereby    defendant    agreed    to 

Held   untenal)le   as   defendant  act    as    booking    agent    for    the 

had    merely    done    lawfully    the  managers     and     the     managers 

things  which  it  had  a  right  to  do.  agreeil  to  book  through  defend- 

"If  the  means  employwl  to  do  ant  exclusively.     The  managers 

a  certain  act  are  legal  and  lawful,  agnn'd     with     each     other     that 

it  is  of  no  consequence  that  the  during  the  term  of  the  agreement 


258 


THE    LAAV   OF   MOTION    PICTURES 


Booking  agents  and  circuit  companies  have  been  held 
not  to  be  engaged  in  interstate  commerce.^ ^ 

A  booking  agency  or  circuit  company  contract  must  be 
construed  in  the  light  of  reasonableness,  so  that  in  a  con- 
tract in  which  territory  was  to  be  set  aside  before  a  day 
certain,  it  was  held  that  time  was  not  of  the  essence, 
and  the  defendant  could  later  set  aside  such  territory  or 
route.^^ 

Section  82. — Benefit  performances — private  exhibitions. 

It  is  a  common  practice  for  clubs,  lodges  and  societies 

to  arrange  with  theatre  owners  for  benefit  performances, 

the  proceeds  of  which  are  as  a  rule  donated  to  some  worthy 


they  would  not  become  directly 
or  indirectly  interested  in  the 
operation  of  any  vaudeville  thea- 
tre other  than  their  own  in  the 
City  of  New  York  except  as 
])rovided  in  the  agreement.  Plain- 
tiff became  in  effect  a  party  to 
the  above  agreement  by  a  subse- 
quent agreement  made  between 
itself  and  other  parties  and  the 
defendant.  Plaintiff  in  violation 
of  his  agreement  became  in- 
terested in  another  theatre  and 
defendant  thereupon  refused  to 
book  any  acts  for  phiintiff's 
theatre.  A  motion  was  made  to 
compel  defendant  to  specifically 
perform,  to  wit:  to  book  acts  for 
plaintiff.  Th(!  motion  was  de- 
nied, among  other   reasons,  be- 


cause the  court  would  not  assume 
the  duty  of  requiring  the  doing 
of  acts  which  would  require  its 
continuous  supervision. 

^^  Interstate  Amusement  Co.  v. 
Albert  (1913),  161  S.  W.  (Tenn.) 
488. 

^■^  Perky  v.  Shvbert  (1907),  121 
A.  D.  (N.  Y.)  786;  106  N.  Y. 
Supp.  593.  Where  tlie  parties, 
theatrical  managers,  contracted 
for  a  certain  territory  for  book- 
ings, defendants  to  set  aside  a 
certain  territory  or  route  prior 
to  May  1st  of  each  year,  it  was 
held  nevertheless  that  time  was 
not  of  the  essence  of  the  con- 
tract, and  that  there  was  no 
evidence  of  a  breach. 


BKNEKIT    PtUFOUMANCEK — PRIVATE    KXHIHITIONS       J.V.J 

charity.  As  those  perfonnaiices  are  <jfteii  licld  un  Sunday, 
the  (juestioii  arises  whetlier,  in  states  wliere  Sunday  j)or- 
fonnances  are  prohibited,  these  classes  of  performances 
arc  exempt.  In  some  of  the  states  performances  or  ex- 
hibitions for  charitable  or  benevolent  purposes  are  ex- 
pressly i)ermittcd  to  be  given  on  Sunday. 

Tn  Kodblc  v.  Woods,^^  an  outdoor  celebration,  con- 
sisting of  foot-races,  bicycle  and  motorcycle  races  was 
stoi)i)cd  by  the  authorities.  In  proceedings  brought  to 
restrain  the  Police  and  Sheriff,  the  court  held  that  the 
fact  that  i)roceeds  were  to  be  given  to  charity  did  not 
give  th(>  promoters  the  right  to  violate  the  law.  But  this 
was  clearly  an  ''outdoor"  sport  or  exhil)iti<)n,  and  there 
was  no  exemption  in  the  New  York  statutes  for  that  kind 
of  entertainment. 

A  performance  of  that  nature  is  not  taken  out  of  the 
statute  l)ecause  the  expenses  of  the  hou.se  are  paid.  The 
test  is  whether  the  proceeds  derived  from  the  sale  of 
tickets  are  devoted  to  charity."' 

"\Miere  a  benefit  performance  had  been  scheduled  to 
take  place,  and  there  was  a  breach  by  the  theatre  owner, 
the  association  giving  the  performance  could  not  reco\er 
where  it  had  suffered  no  damage. '^■'' 

*^  Kodblc  V.  Woods  (1910),  l.V.)  benefit  performance  at  its  theatre. 

N.  Y.  Supj).  704.  SiihscMjuently,  and  after  plaintilT 

^H'omuiotnviidlk    v.    Alcxaiukr  liad    sold    many    of    the    tickets, 

(1001),  ISo  Mass.  551;  70  N.  IC.  defendant  rescinded  the  contract. 

1017.  Held,    that    .since    plaintiff    hatl 

^^Jackcl  V.  Nixon  &  Zimmcr-  refunded  all  the  moneys  for  the 

man  (liK)7),  ,33  Pa.  Sup.  Ct.  30.  tickets    so    purchased    of    it,    it 

PhiintilT,     an     association,     con-  could  not  recover, 
tracted    with    defendant    for    a 


260        .  THE   LAW   OF  MOTION   PICTURES 

"Proceeds"  derived  from  a  benefit  or  charitable  per- 
formance have  been  defined  as  the  balance  remaining 
after  deductions  for  the  expenses  necessarily  incm-red  for 
the  giving  of  such  a  performance.^^ 

Unless  specifically  exempted  by  statute,  a  charitable 
organization  must  secure  a  theatrical  Ucense  and  pay 
the  required  tax  before  giving  pubhc  exhibitions.^^ 

It  is  not  a  pubHc  exhibition  for  a  motion  picture  com- 
pany to  exhibit  its  reels  to  dealers  by  running  them  off  for 
the  purpose  of  renting  or  leasing  the  same.^^ 

Section  83. — Interstate  commerce. 

In  New  York  it  has  been  squarely  held  that  the  theat- 
rical business  does  not  constitute  "interstate  commerce" 
within  the  meaning  of  the  ^ '  Sherman  anti-trust  law. ' '  The 
fact  that  theatrical  companies  travelled  from  state  to 

^  Commomvealth   v.    Alexander  ^M.  G.  v.  Vitagraph  Co.,  Ltd. 

(1904),  185  Muss.  553;  70  N.  E.  (Eng.)  (1915),  1  Ch.  206;  13  L.  G. 

1017.  R.  148;  84  L.  J.   (Ch.)   142;  31 

"CiV//   of  Mobile   V.    Kicman  T.  L.  R.  70;  112  L.  T.  245;  79 

(1910),  54  So.  (Ala.)  102.  J.  P.  150.    The  term  " E.thibUion" 

Sfwlley  V.  Bethell  (Eng.)  in  Section  1  of  the  Cinemato- 
(1883),  12  Q.  B.  1).  11.  Defend-  graph  Act  1909,  refers  to  the 
ant  who  had  a  private  house  cxliibition  of  cincinatograph  pic- 
fitted  up  as  a  private  theatre  tures  in  phices  of  \)uh\u;  enter- 
turned  it  over  to  another  who  tainmcnt,  and  does  not  inchide  a 
advertised  performances  therein  case  where  dealers  in  the  exercise 
for  the  benefit  of  a  School  for  of  tlieir  trade  of  selling  or  renting 
Dramatic  Art.  Ildd  that  de-  films  merely  show  tiieir  lilms  l)y 
fendant  was  guilty  irrosi)ective  ruiming  them  tlirough  their  ma- 
of  the  fact  that  the  performance  chines  in  the  ])rescncc  of  one  or 
was  for  charity.  more  customers. 

Sec  also  Section  100. 


BANKRUPTCY  261 

state  giving  grand  opera  made  no  difference  in  tliis  re- 
spect.**'' But  iu  lUincns  the  court  has  intimated  that  the 
sending  of  llieatrical  troupes  from  one  state  to  another 
is  interstate  commerce.^" 

The  business  of  a  booking  agent  has  been  held  not  to 
constitute  interstate  commerce,  even  where  it  booked 
acts  in  various  states  throughout  the  Union.^' 

And  the  making  of  contracts  in  one  state  for  the  pro- 
duction of  plays  in  another  has  been  held  not  to  violate 
a  statute  forbidding  foreign  corporations  from  doing 
business  in  the  latter  state  without  first  complying  witli 
the  statutory  requirements.^- 

In  United  States  v.  Motion  Picture  Patents  Co.,  how- 
ever, it  was  held  that  the  shipment  f)f  motion  picture 
films  from  one  state  to  another  constituted  interstate 
commerce.^'' 

Section  84. — Bankruptcy. 

It  has  been  held  that  a  distributor  of  motion  picture 
films  is  not  a  "trader"  within  the  m(>aning  of  the  Bank- 

*^  Melropolitan  Opera  v.  Ham-  ''■  A.  II.  Woudx  Produclion  Co. 

imrstcin  (l'.)14),  UVI  A.  D.  (N.  Y.)  v.  Chicago,  Cinnnnati,  dc,  R.  R., 

fiOl;  147  N.  Y.  Supp.  532.  147   111.   App.   'iGH.     See  in   this 

«"  Woods  Production  Co.  v.  Chi-  connection:  Inlcmlale  Ammeineid 

cago,   He,  R.  R.  (1909),  147   111.  Co.  v.  AlbeH  (1913),  Kil  S.  W. 

Ai)p.  508.  (Tenn.)  488. 

»'  Interstate  Aimixement  Co.  v.  »'  United  States  v.  Motion  Pic- 

Alhert  (191.3),  IGl  S.  W.  (Tenn.)  litre     Patents    Co.    "(UJlo),     2-2.-) 

48S.     Here   plaintitT  oiM-ratiHl   u  Fed.    (D.    C.)     800.      See    Sec- 

bookinR  iisencv  in  ("hicjiRo  and  tion    134,  for  discussion  of  this 

(lefcndnnt   <ipcrat<'d  a  theatre  in  cu-se. 
Tennessee. 


262 


THE    LAW    OF   MOTION   PICTURES 


ruptcy  Act,  and  may  not  avail  itself  of  the  provisions  of 
that  Act.^"^  These  decisions  follow  the  principle  laid  down 
in  the  case  In  re  Oriental  Society, ^^  where  it  was  held 


9^  In  re  Imperial  Film  Exchange 
(1912),  198  Fed.  (C.  C.  A.)  80. 
"It  seems  too  clear  for  argument 
that  a  corporation  which  leases 
moving  picture  films  is  not  en- 
gaged in  trading  as  above  de- 
fined." 

The  petition  alleged: 

"That  the  said  Imperial  Film 
Exchange,  for  the  greater  portion 
of  six  months  preceding  the  date 
of  the  filing  of  this  petition,  has 
been  engaged  in  the  business  of 
selUng  and  leasing  moving  pic- 
tures, films,  machines  and  ac- 
cessories for  the  exhibition  of 
moving  pictures,  and  has  its 
principal  place  of  business  at 
No.  44  West  Twenty-lMghth 
Street,  borough  of  Manhattan, 
City  of  New  York." 

The  court  said : 

"Assuming  that  the  business  of 
seUing  moving  picture  films,  ma- 
chines, and  accessories  is  within 
the  act,  the  difnculty  is  that  it  is 
not  alleged  that  the  principal 
business  of  the  corporation  was 
such  selling.  It  was  not  enough 
to  allege  that  a  part  of  the  busi- 
ness of  the  corporation  was  within 
the  statute.  .  .  .  Taking  the  pe- 


tition as  it  stands,  there  is  noth- 
ing to  negative  what  appears  to 
have  been  the  fact  that  the  prin- 
cipal business  of  the  corporation 
was  leasing  picture  films,  although 
occasional  sales  were  made." 

95  7n  re  Oriental  Society  (1900), 
104  Fed.  (D.  C.)  975.  "A  cor- 
poration engaged  in  giving  theat- 
rical performances  is,  of  course, 
not  engaged  in  manufacturing, 
printing  or  publishing.  In  my 
opinion,  also,  it  is  clearly  not 
trading,  or  following  mercantile 
pursuits,  in  the  ordinary  meaning 
of  these  words.  A  trader  or  mer- 
chant is  one  who  either  sells, 
or  buys  and  sells,  and  a  theatrical 
society  does  neither.  It  gives 
performances  of  one  kind  or  an- 
other, to  which  the  public  are 
attracted  by  the  skill  of  the  per- 
formers. But  the  skill  is  not 
sold;  it  is  merely  exhil)ited  for 
hire.  The  fact  that  the  society 
nuist  buy  scenery  and  stage  ap- 
pliances and  furniture,  which  it 
may  aftcM'wanls  s(>ll  again,  is  of 
no  imporlanco.  This  is  a  ni(M-e 
incident,  and  not  the  principal 
business  of  the  bankrupt." 


BANKRUPTCY 


203 


that  a  corporation  cngaf^cd  in  giving  theatrical  per- 
formances could  not  avail  itself  of  the  benefits  of  the 
Bankruptcy  Act. 

It  has,  however,  been  held  in  a  state  court,  that  one 
conducting  a  motion  picture  business  was  engaged  in  a 
"trade"  or  "profession"  and  entitled  to  certain  exemp- 
tions thereby  on  execution  and  le\y.^'' 

.Vn  actor  is  a  wage-earner,  and  as  such  entitled  to  a 
special  preference  for  salary  due  him  from  his  bankrujjt 
employer.^^ 

A  license  agreement  is  personal  and  does  not  pass  to 
the  trustee  in  bankruptcy .^^ 


^Campbell  v.  Ilonakers  (1914), 
166  S.  W.  (Tex.)  74.  The  ques- 
tion wjus  wlicther  the  property 
used  by  appolhuit  in  conducting 
his  motion  picture  business  was 
exempt  from  levy  and  sale  under 
execution,  as  "tools,  apparatus 
and  books  belonging  to  any  trade 
or  profession."  Held  that  an 
Edison  machine  and  an  I'xiison 
Perfecting  Kinetoscojic  Manu- 
facturing sale  machine  and  metal 
machine  outfit  were  exempt. 
But  the  chairs  u.sed  in  the  theatre 
wer(>  nut  exempt.  Held  further 
that  a  |M'rson  engaged  in  the  mo- 
tion picture  industry  was  follow- 
ing a  trade. 

But  see:  Speakc  v.  Poiccll  (Eng.) 
(1873),  L.  R.  9  Ex.  25,  where  it 
was  held  that  the  occu|)ation  of 
an  actor  was  not  a  "  traile." 


•^  Winter  German  Opera,  Ltd. 
(Eng.)  (1907),  23  T.  L.  R.  G62. 
Held  that  under  the  Preferential 
Payments  and  Bankruptcy  .\ct 
of  1888,  the  artists  of  the  com- 
pany were  considered  "servants" 
and  that  their  salaries  up  to  £.^0 
W(juld  have  preferences  in  the 
estate.  Sec  al.so:  Thomas  v. 
Gatli  (Eng.)  (1906),  Times,  Feb. 
1  and  2. 

'■^  In  re  Kay-Tee  Film  Exchange 
(1911),  193  Fed.  (D.  C.)  140. 
The  Lubin  Co.  had  lea.-^tnl  a 
number  of  films  to  the  bankrupt 
more  than  four  months  prior  to 
the  adjudication.  On  ix'tition 
for  reclamation  the  referee  held 
that  the  trustee  had  no  title  in 
such  films  and  decreed  that  they 
be  given  up  to  the  petitioners 
(at  p.  149). 


264 


THE   LAW    OF  MOTION   PICTURES 


Section  85. — Libel. 

To  accuse  a  theatrical  manager  of  fraud,  insolvency 
and  embezzlement  was  held  a  Hbel.^^  And  to  include 
statements  in  a  newspaper  that  a  theatrical  production 
was  immoral  when  not  so  in  fact  was  also  held  to  be 
Ubelous.^"°    A  statement  that  a  theatrical  manager  had 


"So  far  as  this  proceeding  is 
concerned  it  is  one  to  recover  the 
identical  property  belonging  to 
the  petitioner  and  traced  into 
the  hands  of  the  trustee  in  bank- 
ruptcy. The  petitioner  never 
intended  to  sell,  and  had  no  right 
to  sell,  and  did  not  sell  s^id 
moving  pictures  or  reels  to  the 
bankrupt." 

Day  V.  Luna  Park  (1912),  174 
111.  App.  477.  A  bar  concession 
in  an  amusement  park  is  personal 
and  does  ncjt  pass  to  the  trustee 
in  bankruptcy.  For  detailed 
discussion,  sec  Section  14. 

99  Fn/  V.  Bennett  (1863),  28 
N.  Y.  324.  A  charge  that  a 
theatrical  manager  has  designed 
to  cheat  and  defraud  the  sub- 
scribers to  an  opera  by  a  fraudu- 
lent discontinuance  of  perform- 
ances, that  he  had  become 
insolvent  at  Pliihidclpliia  and 
was  about  to  becoiuf!  insolvent  at 
New  York,  tliat  he  had  mis- 
appropriaUid  tlie  moneys  received 
from  subscribers,  and  tluit  gam- 
blers    patronized     iJcrfDrmunces 


given  by  him  was  held  to  con- 
stitute a  libel. 

See  also:  Gott  v.  Pulsifer  (1877), 
122  Mass.  235.  The  plaintiff 
brought  this  action  because  of 
statements  made  in  defendant's 
newspaper  concerning  a  scientific 
curiosity   belonging   to   plaintiff. 

Gray,  C.  J.,  said:  "This  action 
is  not  for  a  libel  upon  the  plain- 
tiff, but  for  publisliing  a  false 
and  malicious  statement  con- 
cerning his  property,  and  could 
not  be  supported  without  an 
allegation  and  proof  of  special 
damage.  The  special  damage 
alleged  was  the  loss  of  the  sale 
of  the  plaintiff's  statue  to  Palmer. 
Evidence  of  the  value  of  the 
statue  as  a  scientific  curiosity 
was  therefore  rightly  rejected  as 
immaterial. 

100  Merivale  v.  Carson  (Eng.) 
(1888),  L.  R.  20  Q.  H.  Div.  27r); 
58  L.  T.  N.  S.  331. 

Fay  v.  Harrington  (1900),  17() 
Muss.  270;  57  N.  E.  369.  Plain- 
tiffs, proprietors  of  a  th(>atre, 
brouglit    this    action    for    libel 


LIBEL 


20') 


forced  out  one  of  his  copartners  and  had,  together  with 
the  other  surviving  partner,  appropriated  the  entire  profit 
of  the  brains  and  capital  of  their  associate  to  themselves 
constituted  an  actionable  libel.'"' 

When  the  articles  charged  plaintiffs  with  discriminating 
unfairly  against  the  Irish  population,  in  their  business  of 
giving  entertainments,  they  were  held  not  actionable  with- 
out proof  of  special  damage. '"- 

A  motion  picture  company  w^as  h(?ld  to  libel  the  ])lain- 
tiff,  the  owner  of  a  shop,  where  a  "White  Slav'e"  picture 


against  the  publisher  of  a  news- 
paper. //(■/'/  that  where  the  ar- 
ticles eliarffed  |)hiiiitifTs  with  giv- 
ing!; imleceiit  exliil)iti«)iis,  evideiice 
showing  tliat  the  costumes  worn 
by  the  dancers  at  the  performance 
which  (Icfeiulant  a.ssertetl  was 
indecent,  were  siinihir  in  style 
to  those  usually  worn  by  young 
women  dancing  on  the  stage  at 
]iublic  performances,  was  properly 
exclude*  1. 

»""  Khur  V.  \nr  York  Presft  Co. 
(1010),  VM  \.  1).  (X.  Y.)  GSG; 
122  X.  V.  Supi).  437.  Plaintiff 
contended  that  defendant  jjub- 
lished  false  statements  concern- 
ing him  because  of  the  with- 
drawal by  him  of  advertisements 
of  his  theatrical  productions. 
Th(^  article  contained  a  st^vto- 
nient  to  tlie  effect  that  plaintiff 
had    forced   out   of   his   business 


one  of  hik  co-partners  and  that 
he  and  the  other  rerfiaining 
partner  had  seized  "the  whole 
profits  of  the  l)rains  and  capital 
of  their  associate  for  tliemselves" 
— Held  libelous  per  .se. 

The  court  said:  "Although 
this  article  does  not  directly  re- 
late to  acts  of  the  plaintiff  in  his 
business  and  profession  of  pro- 
ducing and  l)<H)king  plays,  it 
does  indirectly  and  would  nat- 
urally, if  believeil,  affect  him  in 
his  business  and  profession  which 
nece.s.sarily  involves  the  making 
of  contracts,  for  most  people  dis- 
like to  deal  with  tnen  who  woulil 
be  alert  to  take  advantage  of  them 
and  are  known  t«t  have  bn'ii 
guilty  of  sharp  practices." 

'"■'Fay  V.  Harrington  (1900), 
17G  Mass.  270;  57  N.  E.  3G5). 


266 


THE    LAW    OF   MOTION   PICTURES 


had  been  taken  purporting  to  hold  the  shop  out  as  a 
rendezvous  for  questionable  characters.  ^°^ 

An  interesting  discussion  as  to  the  limits  a  newspaper 
may  go  in  criticizing  a  production  or  its  management  is 
contained  in  Philipp  Co.  v.  New  York  Staats-Zeitung}^'^ 

Where  a  man  on  trial  for  murder  sought  to  enjoin  the 
production  of  a  play  upon  the  ground  that  it  prevented 
the  conducting  of  an  impartial  trial  and  interfered  with 
the  administration  of  justice,  the  court  refused  to  grant 
equitable  relief,  holding  that  his  remedy,  if  any,  was  at 
law  for  libel.  ^°'' 


i^^  Merle  v.  Sociological  Re- 
search Film  Corp.  (1915),  1G6 
A.  D.  (N.  Y.)  376;  152  N.  Y. 
Supp.  829. 

"■•  Philipp  Co.  V.  New  York 
Staats-Zeitung  (1914),  165  A.  D. 
(N.  Y.)  377;  150  N.  Y.  Supp. 
1044.  "The  press  is  accorded, 
for  the  puJihc  interests,  a  quah- 
fied  privilege  to  discuss  and  criti- 
cize the  management  of  and 
productions  at  a  theatre  to  wliich 
the  public  are  invited,  and  this 
privilege  in  the  absence  of  ac- 
tual malice  extends  even  to  ridi- 
cule and  is  without  limitation; 
but  since  it  is  accorded  for  the 
benefit  of  the  public  only  and 
the  guidance  of  public  opinion 
and   taste,   when   (Ik;   discussion 


or  criticism  exceeds  the  bounds 
of  fair  and  honest  criticism,  and 
becomes  an  intemperate,  aspersive 
attack  upon  the  motive  of  the 
management  of  the  theatre,  or 
the  character  of  the  production 
thereat,  an  evil  and  malicious 
motive  for  the  publication  may 
l)e  inferred;  and  if  found  to  exist, 
the  publication  is  not  protected 
by  the  qualified  privilege,  but 
may,  of  course,  be  justified  by 
absence  of  malice  or  by  pleading 
and  proving  that  it  was  true 
(cases  cited)." 

'"•'  Dnilcy  v.  Super.  Court 
(1890),  112  Cal.  94;  44  Pac.  458. 
See  also:  Brandrelh  v.  Lance 
(1839),  8  Paige  (N.  Y.),  20. 


CHAPTER  VI 

THE    PUBLK' 

Right  of  Privacy 

Sec.  80.  In  poiuTal. 

87.  Wlit'ii  liahlc  under  statute. 

88.  Wlicn  not  liable  under  statute. 

89.  When  u.s(!  of  name  or  picture  is  libelous. 

90.  Weekly  news  motion  pictures. 

Section  86. — In  general. 

\Mieii  we  come  to  review  the  rights  of  the  public  in 
their  relation  to  tlie  motion  ])icture  industry,  we  must 
take  up  as  of  i)aramount  imi)ortance  the  "right  of  jiri- 
vacy."  This  is  a  very  recent  de\'elopment  of  the  law,  ami 
is  evidentiary  of  the  growing  tendency  of  the  courts  and 
law-making  bodies  to  protect  the  citizen  in  liis  personal 
rights  as  well  as  in  his  ])roi)erty  I'ights. 

The  policy  of  the  English  connnon  law  has  in  (he  main 
been  a  policy  of  protection  of  property  rights.  For  the 
protection  of  his  personal  riglits  the  individual  was  rel- 
egated to  the  narrow  limits  of  his  remedy  in  tort  or  to  the 
criminal  branch  of  the  law. 

The  person  of  the  individual  was  considered  a  thing 
ai)art  from  his  brain,  his  mind,  his  feelings  and  the  entire 
incorporeal  part  of  him.  So  that  when  th(^  ]ihrase  "per- 
sonal injury"  was  used,  reference  was  had  to  a  j^hysical 

2(i7 


268  THE    LAW    OF   MOTION    PICTURES 

injury,  suffered  directly  to  the  bodily  person.  And  when 
the  courts  desired  to  protect  a  personal  right,  recourse 
was  had  to  the  pretense  of  protecting  some  fictitious 
property  right. 

For  instance,  in  actions  for  breach  of  promise,  where  the 
injury  is  purely  in  the  mental  suffering,  there  was  woven 
in,  with  the  element  of  tort,  one  of  contract.  In  libel, 
redress  was  offered  on  the  theory  that  it  tended  to  provoke 
a  breach  of  the  peace.  Slander  was  based  on  the  assump- 
tion of  a  pecuniary  loss  suffered. 

In  none  of  these  cases  was  it  pretended  that  the  individ- 
ual had  such  vested  inherent  rights  in  his  person  per  se 
that  law  or  equity  would  extend  to  them  the  full  measure 
of  protection  afforded  him  in  his  property  rights.  Indeed, 
a  review  of  the  law  of  unfair  competition  discloses  that 
even  the  right  to  protection  in  a  man's  name,  for  trade 
purposes,  was  not  recognized  until  the  nineteenth  cen- 
tury; and  a  considerable  period  elapsed  before  legislators 
extended  that  right  to  include  protection  against  other 
modes  of  invasion  of  purely  personal  rights. 

With  the  advent  and  rapid  advance  of  the  arts  of 
photography  and  lithography,  the  spread  of  advertising, 
the  motion  picture  film  and  other  innovations  of  a  like 
nature,  a  new  form  of  invasion  of  the  individual's  per- 
sonal rights  came  into  practice— the  reproduction  and 
general  dissemination  of  his  likeness. 

In  1900  an  action  was  brought  in  New  York  '  in  which 

^  Robcrson  v.  Rochester  Folding  "Nevertheless  the  courts  r(>!i('lu>(l 

Box  Co.  (1002),  171  N.  Y.  5.38;  64  the  conclusion  thut  plnintilT  had 

N.  E.  442.    Cliicf  Justice  Parker  a   Rood   cause   of   action   against 

who     wrote     the     opinion     said:  defendants  in  that  defendants  had 


IN  (;eneral 


269 


this  fjuostion  was  squarely  prosontod.  TIktc,  one  of  tho 
defendants  engaged  in  tlic  general  niillii»g  business,  had 
printed  and  sold,  without  the  knowledge  or  consent  of  the 
l)laintifT,  about  twenty-five  thousand  lithogra})hie  prints 
or  likenesses  of  the  plaintiff,  which  were  distributed 
broadcast  and  exhibited  in  various  [)laces  throughout  the 
country.  The  hkencss  was  a  good  one.  Plaintiff,  however, 
claimed  that  she  had  suffered  great  distress  and  anguish 
of  mind  and  body,  and  sought  injunction  and  damages. 

The  Court  of  Appeals  reversed  a  decision  in  her  favor 
upon  the  ground  that  in  the  absence  of  statute  there  was 
no  principle  of  the  common  law  which  would  sustain  her 
cause  of  action. 

It  was  held  in  England  that  the  sale  of  picture  post- 


invaded  what  is  called  'a  right 
of  privacy'— jn  other  words  tlie 
ri^ht  to  Ijc  let  alone.  Mention 
of  sucli  a  rif^ht  is  not  to  be  found 
in  B[ack^^tone,  Kent  or  any  of 
the  otlier  ^rcat  commentators 
uiKjn  the  law,  nor  so  far  as  the 
learning  of  counsel  or  the  courts 
in  this  ca.se  have  been  able  to  dis- 
cover, does  its  existence  svom  to 
have  been  a.s.serted  prior  U)  about 
tlie  year  1S90  when  it  wjis  pre- 
sented with  attractiveness  and  no 
inconsiderable  ability  in  the  Har- 
vard Law  Review  (Vol.  IV,  page 
193),  in  an  article  entitled  'The 
Right  of  Privacy.'" 

Ilamj  V.  Cherry  (1909),  73  Atl. 


(R.  I.)  97.  Approves  of  Roberson 
V.  Roclienler  Folding  Box  Co.  and 
reiterates  the  doctrine  that  in- 
dependently of  statute  there  is  no 
such  thing  as  a  right  of  privacy. 

See  also:  Murray  v.  Gast  Litho- 
graphic etc.  Co.  (1894),  8  Mi.sc. 
(X.  Y.)  36;  28  N.  Y.  8upp.  271; 
Atkiu.wu  V.  Doherly  (1899),  121 
Mich.  372;  80  N.  \V.  285;  Feck  v. 
Tribune  Co.  (1907),  214  U.  S.  185; 
29  Sup.  Ct.  5.>4;  Edisot^  v.  Edison 
Fnhjfonn  Co.  (1907),  73  N.  J.  Eq. 
13(>;  <)7  Atl.  392;  Crutchcr  v.  Big 
Four  (1908),  132  Mo.  App.  311; 
111  S.  W.  891;  Hillman  v.  Star 
Puhl.  Co.  (1911),  (>4  \Va.sh.  691: 
117  Pac.  594. 


270 


THE    LAW   OF   MOTION    PICTURES 


cards  bearing  plaiiitiff' s  likeness  was  not  actionable;  - 
that  a  physician  could  not  as  an  individual  control  the 
use  of  his  name  in  connection  with  advertisements,^  and 
that  a  pugilist  could  not  enjoin  the  exhibition  of  a  motion 
picture  showing  him  defeated  in  a  contest.^ 

Not  only  was  the  individual  helpless,  under  the  common 
law,  but  his  parents,  guardians  and  personal  represent- 
atives were  likewise  without  remedy.^ 

^Corelliw  Wall  (Eng.)  (1906),  ^Murray  v.  Gast  Lithographic 

22  Times  L.  R.  532.    Unless  the      etc.  Co.  (1894),  8  Alisc.  (N.  Y.)  36; 


matter  complained  of  was  libelous 
plaintiff  could  not  maintain  in- 
junction independently  of  statute, 
where  defendant  placed  her  pic- 
tures on  post-cards  with  alleged 
scenes  of  her  life. 

See  also:  Kunz  v.  Bosselman 
(1909),  131  A.  D.  (X.  Y.)  288; 
115  N.  Y.  Supp.  650,  where  de- 
fendant was  held  liable  for  a 
similar  offense  under  the  Civil 
Rights  Law. 

'  Clark  V.  Freeman  (Eng.) 
(1848),  11  Beav.  112  and  Dock- 
rell  V.  Dou{/all  (l<:ng.)  (1898),  78 
L.  T.  N.  S.  840,  80  L.  T.  R.  556, 
involving  the  right  of  a  physician 
to  the  use  of  his  name  where  an  ad- 
vertisement had  been  issued;  and 
Mackenzie  v.  Soden  Mineral 
Springs  (1891),  20  Abb.  N.  C. 
(N.  Y.)  402;  18  N.  Y.  Supp.  240. 

*  Palmer  v.  National  Sportiiig 
Chih  (Eng.)  (1906),  C'h.  I).,  Nov. 
16. 


28  N.  Y.  Supp.  271.  A  father 
was  held  to  have  no  cause  of 
action  against  one  for  publishing 
the  photograph  of  his  daughter. 

But  where  the  picture  or  article 
is  libelous  and  reflects  on  the 
other  members  of  the  family,  a 
cause  of  action  arises  as  to  each. 
Fenstermaker  v.  Tribune  Pub.  Co. 
(1895),  12  Utah,  439;  43  Pac.  112. 

Schuyler  v.  Curtis  (1893),  24 
N.  Y.  Supp.  509;  rev.  147  N.  Y. 
434;  42  N.  E.  22.  The  court 
below  granted  injunction  at  the 
suit  of  relatives  of  a  decedent, 
restraining  the  defendant,  a  volun- 
tary association,  from  making, 
.setting  up  and  exhibiting  in  pub- 
lic a  statu-e  of  the  deceased. 

The  Court  of  Appeals  reversed, 
holding  that  there  was  no  in- 
vasion of  the  right  of   i)rivacy. 

Sec:  Marks  v.  Jaffa  (1893),  6 
Misc.  (N.  Y.)  290;  26  X.  Y.  Supp. 
908. 


IN    GENERAL  J/ 1 

As  a  result  of  tlic  Kubei\s(jn  dccisicjii  llie  Lt'f^iftlaturc  (jf 
New  York  in  1903  passed  a  law  designed  to  meet  that 
situation,  which  law  was  incorporated  in  the  Civil  Rights 
Law  '■  and  came  up  for  construction  Ijy  the  same  court  in 
1908.  It  was  there  held  to  be  constitutional,  but  the 
court  at  the  same  time  declared  the  Act  to  be  purely 
prospective  in  its  nature,  and  that  such  law  did  not  limit 
the  right  of  one  to  use  the  portrait  of  another  which  had 
been  acquired  prior  to  the  enactment  of  the  statute." 

Later  decisions  have  discussed  the  right  to  sue  for  a 
violation  of  this  statute  in  law  and  in  ecjuity.''  In  a  ca.se 
wherein  a  picture  was  made  purporting  to  show  the  evils 


6Lu\vs  of  New  York,  1003, 
Chaj).  132. 

'  Rhodes  \.  Spcrry  &  Hutchinson 
(ll)OS),  193  N.  Y.  223;  85  N.  E. 
10'J7;  aff'd  220  U.  S.  502;  31 
Sup.  Ct.  490.  "It  Is  wholly 
prospective  in  its  operation,  and, 
therefore,  wholly  good  .  .  .  and 
docs  not  apply  to  i)reviously 
acquired  i)ictures  at  all.  Upon 
portraits  the  ownership  of  which 
was  in  others  at  the  time  when 
the  act  took  elTect  its  provisions 
are  inoperative.  Such  pictures 
the  owner  is  still  at  hherty  to  use 
for  advertising  or  trade  purposes 
without  being  held  thereby  to 
have  been  guilty  of  a  crime  or  to 
have  committed  a  tort.  Ilis 
l)n)i)erty  rights  therein  are  un- 
alTected  by  the  statute." 


» Jacob  V.  Schiff  (1913),  U9 
X.  Y.  Supp.  273.  Suit  wa.s 
brought  to  restrain  the  use  of 
plaintiff's  portrait.  Held  that 
the  main  remedy  was  injunction 
with  damages  as  incidental  relief. 

"It  may  be  said  that  the  whole 
statute  (Civil  Rights)  undoubt- 
edly was  passed  with  a  view  of 
adording  to  a  plaintiff  a  right 
to  a  jury  trial  in  all  the  relevant 
issues,  if  he  elects  to  pursue  his 
remedy  at  law;  but  the  bringing 
of  the  suit  in  equity,  with  rehance 
upon  recovery  for  damages  as 
inciilental  thereto,  is  either  a 
waiver  of  the  right  to  a  jur}'  trial, 
or,  perhaps,  more  strictly  speak- 
ing, the  abandonment  of  an  in- 
tention to  stM?k  that  mode  of 
trial." 


272  THE    LAW   OF   MOTION    PICTURES 

of  the  traffic  in  vice,  plaintiff's  factory  was  photographed 
exhibiting  the  firm  name  upon  it.  He  brought  suit  on 
two  causes  of  action,  one  for  hbel,  and  one  for  a  violation 
of  the  statute.  The  court  sustained  a  demurrer  on  the 
second  cause  of  action,  but  held  that  the  exhibition  of 
plaintiff's  factory  in  which  a  large  number  of  girls  were 
employed,  in  connection  with  a  picture  of  that  kind,  might 
reflect  seriously  upon  his  good  name,  and  overruled  a 
demurrer  as  to  the  first  cause  of  action.^ 

The  English  courts,  while  refusing  to  recognize  any 
right  to  protection  in  the  person,  have  occasionally  pro- 
tected the  individual  in  his  property  rights,  if  the  same 
were  affected  by  an  exhibition  or  dissemination  of  this 
kind,  and  they  granted  injunctions  on  the  theory  of  a 
breach  of  a  trust  relationship.^"  This  doctrine  has  been 
followed  in  some  cases  by  our  Federal  courts  and  in  some 
of  the  states.  ^^ 

Some  of  the  American  jurisdictions  have  taken  issue 

9  Merle  V.  Sociological  Research  149  Ky.  506;  149  S.  W.  849,  a 

(1915),  166  A.  D.   (N.  Y.)  376;  photographer  was   employed   by 

152  N.  Y.  Supp.  829.  the   parents   to   photograph   the 

^"Pollard  V.   Photographic   Co.  dead  body  of  a  deformed  child. 

(Eng.)  (1888),  L.  R.  40  Ch.  Div.  He    thereafter    copyrighted    the 

345,  in  which  a  photographer  was  same    and    published    it.      Held, 

restrained    from    putting    in    his  that   he   was   liable   in   damages 

window  a  photograi)h  of  a  patron,  on  the  theory  that  it  constituted 

See    also:    Boyil    v.    Dagenais  a  l)reach  of  a  trust  relationship, 

((.'an.)  (1897),  liap.  Jud.  Quebec,  See  also:  Atkinson  v.   Dohaiy 

lies.  66.  (1899),  121  Mich.  372;  80  N.  W. 

''Corliss    V.     Walker     (1893),  285. 

57   Fed.    (C.   C)   4.34;    64    Fed.  See  in  this  connection:  Vassar 

(('.(".)  280.  College    v.    Loose    Wiles    (1912), 

In    Dougla.H    v.    Stokes    (1912),  197  Fed.  (D.  C.)  982. 


IN    GENKUAL 


2r.\ 


with  tlic  rule  laid  down  by  the  Iloherson  casp  and  liave 
granted  luuteclion  ''on  the  seorc  of  it  fthe  right  to  dis- 
play one's  likeness)  being  a  property  right  of  material 
profit."  '2 


^■'Mundcn  v.  //am'.s  (1911), 
15;}  Mo.  App.  (552;  134  S.  W.  1070. 
The  court  hokl.s  that  tlic  right  of 
privacy  exists  independent  of  any 
statute;  that  one  whose  picture 
is  being  cxliibited  may  restrain 
such  u.sc  tiicrcof  or  sue  for  dam- 
ages in  an  action  at  law. 

In  taking  issue  with  the  doc- 
trine laid  down  by  the  prevailing 
opinion  in  Jiobtrsun  v.  Rochester 
Folding  Box  Co.  (1902),  171  N.  Y. 
538;  64  N.  E.  442,  the  court  said: 

"We  therefore  conclude  that 
one  has  an  exclusive  right  to  his 
picture,  on  the  score  of  it  being 
a  property  right  of  material  profit. 
We  also  consider  it  to  be  a  prop- 
erty right  of  value  in  that  it  is 
one  of  the  modes  of  securing  to  a 
person  the  enjoyment  of  life  and 
the  exercise  of  liberty;  and  that 
novelty  of  the  claim  is  no  objec- 
tion to  relief.  If  this  right  is, 
in  either  resjK'ct  invaded,  lie  may 
have  iiis  remedy,  either  by  ro- 
straint  in  e(iuity,  or  damages  in 
an  action  at  law.  If  there  are 
s(x>cial  damages,  they  may  be 
stated  and  recovered;  but  such 
character  of  damages  is  not  nec- 


essary to  (lie  action,  since  general 
damages  may  be  recovered  with- 
out showing  a  specific  lo.ss;  and 
if  the  element  of  malice  appears, 
as  that  term  Ls  known  to  the  law, 
exemplary  damages  may  be  re- 
covered." 

Edison  v.  Edison  PoUjJorm  Co. 
(1907),  73  X.  J.  Eq.  136;  67  Atl. 
392.  This  ca.se  also  holds  that 
there  is  a  projK^rty  right  in  one's 
photograph,  and  that  where  de- 
fendant was  advertising  Mr.  Edi- 
son's name  and  picture  without 
his  consent ,  he  could  restrain  such 
acts. 

See  also:  Von  Thadorovich  v. 
Franz  Joseph  Beneficial  Asso. 
(1907),  154  Fed.  (C.  C.)  911; 
Vnmicrbilt  v.  Mitchell  (1!>06), 
71  N.  J.  Eq.  632;  63  Atl.  1107; 
Fostcr-Milburn  v.  Chinn  (1909), 
134  Ky.  424;  120  S.  W.  .364; 
Mackenzie  v.  Sodcn  Miiural 
Springs  (1S91),  20  Abb.  X.  C. 
(X.  Y.)  402;  18  X.  Y.  Supp.  240; 
Francis  v.  Flynn  (1885),  118  U.  S. 
.38,5;  6  Sup.  Ct.    148. 

Pavesich  v.  Xew  Englatul  (1904), 
122  (Ja.  190;  50  8.  E.  &S.  This 
case  contains  an  excellent  sum- 


274 


THE    LAW    OF   MOTION    PICTURES 


Section  87. — When  liable  under  statute. 

For  a  leading  case  illustrating  the  application  of  the 
Civil  Rights  Law  to  motion  pictures  Binns  v.  Vitagraph 
Co.  is  of  great  interest."  There  the  defendant  released 
a  film  which  purported  to  depict  the  story  of  a  shipwreck. 
Plaintiff,  although  he  had  never  posed  for  the  picture  nor 
authorized  the  use  of  his  name  therein,  was  widely  ad- 
vertised as  the  hero.  Although  it  was  claimed  that  the 
actual  photograph  of  the  hero  in  the  story  was  not  that 
of  plaintiff,  the  court  nevertheless  restrained  the  use  of 
the  film  as  coming  clearly  within  the  statute. 

A  newspaper  was  held  to  violate  the  plaintiff's  rights  m 
publishing  a  photograph  after  a  severance  of  business  rela- 
tions between  them;  "  and  in  another  case  defendant  was 


niary  of  the  law  relating  to  the 
right  of  privacy.  , 

13  Binns  v.  Vitagraph  Co. 
(1913),  210  N.  Y.  rA;  103  N.  E. 
1108.  "A  picture  within  the 
meaning  of  the  statute  is  not 
necessarily  a  photograph  of  the 
living  person,  but  includes  any 
representation  (A  such  person. 
The  picture  represented  by  the 
defendant  to  be  a  true  picture  of 
the  plaintiff  and  exhibited  to  the 
I)ub]ic  as  such,  was  intended  to 
be,  and  it  was,  a  representation. 
of  tlie  plaintiff.  Tlu;  defendant 
is  in  no  i)osition  to  say  that  the 
pif'ture  d(jcs  not  represent  the 
plaintiff  or  that  it  was  an  actual 
j)icture  of  a  jKirson  made  up  to 


look  like  and  impersonate  the 
plaintiff." 

In  this  connection  see  also: 
D'Altomonte  v.  A''.  Y.  Herald 
(1913),  154  A.  D.  (N.  Y.)  453; 
139  N.  Y.  Supp.  200;  modified 
208  N.  Y.  596;  102  N.  E.  1101. 

^*  Bowden  v.  Amalgamated  Pic- 
torials, Lim.  (Eng.)  (1911),  80 
L.  J.  Ch.  291;  1  Ch.  3S();  103  L.  T. 
829.  Where  plaintiff  supplied 
photographs  to  a  newspaper  at 
agreed  rates,  and  after  he  severed 
his  connection  with  it,  the  news- 
paper continued  to  jMiblish  jjhoto- 
graphs  of  plaintilT,  some  copy- 
righted, and  some  uncopy righted, 
Ifrlil  that  the  termination  of  the 
contract    amounted    to    a    with- 


WMKN     LlAUl.K     INDKU    srATUTK 


27rj 


not  permitted  to  advertise  his  lengthy  association  in 
business  with  i)huntifT.''^ 

Where  defendant,  without  consent,  used  the  name  of 
Dr.  diaries  W.  Eliot  for  a  series  of  l)ooks,  calling  the  same 
"Dr.  Eliot's  Five-foot  Shelf"  and  "Dr.  Eliot's  Set"  it 
was  held  that  he  was  violating  the  statute. '° 

The  New  York  statute  i)ro\i(les  that  the  consent  of 
the  })erson  whose  name  or  ])icture  is  used  must  be  ob- 
tained in  writing,  and  an  oral  authorization  is  insufficient.'' 
drawalof  all  open  offers  and  plain-      doinurrable.     The   authorization 


tilT  could  enjoin  both  the  publi- 
cation of  the  copyrighted  and 
uncopyrightcd  photographs. 

See  also:  Man.sdl  v.  Valley 
Prinling  Co.,  Lim.  (Eng.)  (ll)OS), 
77  L.  J.  Ch.  742;  2  Ch.  441. 

See  in  this  connection:  lliUinau 
V.  Star  Pub.  Co.  (1911),  64  Wash. 
695;   117  Pac.  594. 

'^Thompson  v.  Tillford  (1913), 
152  A.  D.  (X.  Y.)  92S;  137  N.  Y. 
Supp.  523. 

'•/iVtW  V.  Jones  (1910),  (>() 
Misc.  (X.  Y.)  95;  120  X.  Y.  Sup]). 
9S<);  alT'd  140  A.  D.  (X.  Y.) 
911;  125  X.  Y.  Sup|).  1119. 

"WynU  V.  McCrecnj  (190S), 
120  A.  1).  (X.  Y.)  0.')0;  111  X.  Y. 
Supp.  SO.  Plaintiff,  an  actres.s, 
had  orally  authorized  the  de- 
fendant to  sell  and  make  any  u.se 
it  .saw  fit  of  her  photograph. 
Ilfld,  that  where  plaintiff  brought 
an  action  undj'r  the  Civil  Rights 
J^aw,  a  defense  of  that  kind  was 


.should  have  been  in  writing. 

Furd  V.  Ilcancy  (1910),  X.  Y. 
Law  Journal,  July  22,  Bischoff,  J. 
"Plaintiff  moves  for  an  injunc- 
tion pendente  lite  restraining  de- 
fendant from  manufacturing  the 
positive  print  from  a  certain 
negative  motion  picture  of  the 
plaintiff  in  their  ix)sse,ssion ,  and 
from  exhibiting  or  producing 
the  same  in  violation  of  the  rights 
claimed  bj'  her  under  sections  '^ 
and  51  of  the  Civil  Rights  Law. 
It  is  undisputed  that  the  defcnd- 
ant.s  intend  to  use  the  .said  pic- 
ture for  the  purposes  of  trade, 
and  it  is  admitted  by  them  that 
tliev  have  not  obtained  the  writ- 
ten consent  of  the  plaintiff  to 
such  use,  as  provided  for  in  said 
sections.  The  defendantvS,  by 
certain  mesne  transactions,  dulv 
aciiuired  said  negative,  originallv 
owned  i)y  a  certain  Cameraphonc 
Coujpany,  for  whom  the  plaintiff 


270 


THE    LAW   OF   MOTION    PICTURES 


posed  and  to  whom  she  gave  her 
consent  to  the  exhibition  of  said 
picture  for  one  year.  The  said 
agreement  was  entered  into  by 
the  plaintiff  with  said  company, 
under  date  of  9th  of  October, 
1908,  and  granted  the  right  to 
said  company  to  exhibit  the  pic- 
ture so  taken  for  the  year  ending 
on  the  2nd  of  November,  1909. 
The  said  agreement  is  in  the  form 
of  a  letter  written  on  behalf  of 
the  said  company  to  the  plaintiff, 
but  is  not  signed  by  her.  There 
can  be  little  doubt,  however, 
that  the  acceptance  of  the  latter 
and  the  subsequent  posing  by  her 
pursuant  to  the  terms  thereof 
should  be  regarded  as  a  written 
consent  within  the  statute.  The 
defendants  admit  in  the  brief 
filed  in  their  behalf  that  the  right 
given  to  said  company  was  limited 
to  one  year,  but  state  that  they 
were  unaware  of  the  existence 
of  such  agreement  at  the  time  of 
their  purchase,  and  therefore 
cannot  be  bound  by  its  terms. 
They  assert  that  they  arc  bona 
fide  purchasers  for  value,  and 
that  the  rule  which  is  applied 
upon  the  purchase  of  personal 
property,  that  the  purchaser 
must  have  notice  that  ho  buys 
with  only  a  qualified  right  of  use, 
if  such  is  the  fact,  should  prevail 
and  prevent  the  dcfotidaiits  being 


bound  by  some  special  and  secret 
agreement  made  by  the  plaintiff 
with  the  Cameraphone  Company. 
The  difficulty  with  such  a  con- 
tention is  that  it  does  not  meet 
the  point  made  by  the  plaintiff 
that  the  said  statutory  consent 
has  not  been  obtained.  The 
defendants,  in  ordinary  prudence, 
were  charged  with  the  dutj''  of 
ascertaining,  before  they  made 
the  purchase,  as  to  whether  the 
latter  would  involve  the  right 
to  use  the  picture  for  purposes  of 
trade,  notwithstanding  the  pro- 
visions of  the  Civil  Rights  Law. 
If,  because  of  omission  to  make 
due  inquiry  in  that  respect, 
embarrassment  exists,  they  have 
no  one  but  themselves  to  blame. 
The  further  circumstances  that 
the  plaintiff  was  an  actress,  of 
more  or  less  renown,  and  that 
therefore  her  j)icturc  would  have 
value  as  being  of  some  public 
interest,  might  well  have  put  the 
defendants  upon  inquiry  to  ascer- 
tain whether  the  apparently  valu- 
able rights  they  intended  to  ac- 
<iuirc  were  unciucstioned.  The 
cases  cited  by  tlu;  defendant  and 
wherein  the  i)ersons  giving  the 
jM-ivileges  as  to  their  pictures 
or  names  affcmpted  to  curtail 
their  use,  altliougli  no  limitation 
had  been  placed  on  the  rights 
granted,  it  will  be  seen,  can  have 


WHEN  i.iauli:  rN'DKJi  statute  2n 

Dissoniination    of    j)i('ture-postcards   with    a   likeness    of 
pluiutiiT  is  a  violation."* 

Defendant's  good  faith  is  entirely  immaterial  so  far  as 
the  injunction  is  concerned. ''•' 


no  applicntinii  here.  Tlie  statute 
docs  not  i)revcnt  the  person 
giving  a  written  consent  limiting 
or  (jualifying  it  in  any  way  lie 
may  see  fit,  and  that  was  pre- 
cisely what  was  clone  in  the  pres- 
ent circumstances,  as  appears 
by  saitl  agreement.  I  think  from 
what  tlius  appears  Ihat  the  plaiii- 
titT  is  entitled  to  j)revent  tlic  use 
of  the  said  picture  pendente  lite, 
and  to  the  relief  demanded  herein. 
Motion  granted." 

^^Kiinz  V.  liosfielman  (1909), 
131  A.  D.  (X.  Y.)  2SS;  115  N.  Y. 
Supp.  GoO.  On  demurrer  it  was 
held  that  a  complaint  which 
stated  tliat  the  defendant  was 
engaged  in  the  business  of  sell- 
ing f)ortraits  and  post-cards  and 
among  other  places  in  the  City 
of  New  York  he  used,  displayed, 
circulated  and  ofTered  for  sale 
for  the  purpose  of  trade  the  plain- 
tiff's portrait  and  picture,  stated 
a  cause  of  action  under  the  New 
York  statute. 

See  also:  Corelli  v.  Wall  (Eng.) 
(1900),  22  T.  L.  11.  fjiri. 

'» Herbert  v.  Universal  Talk. 
Mncli.    Co.    (I<.)01),   X.    Y.    Law 


Journal,  .March  9.  "I  am  of  the 
opinion  that  the  plaintiff  brings 
himself  squarely  within  the  pro- 
visions of  Chapter  132  of  the 
Laws  of  1903,  giving  a  person 
whose  naitie  is  used  for  adver- 
tising purpcises  or  for  the  purpose 
of  trade  without  written  con.sent 
fii-st  obtained,  the  right  to  main- 
tain an  e(iuitable  action  to  re- 
strain the  use  of  his  name  and 
recover  damages  for  any  injury 
sustained  by  reason  of  such  use. 
.  .  .  The  statute  is  invoked  to 
restrain  the  further  sale  of  those 
wares  through  the  aid  or  instru- 
mentality of  the  addetl  commer- 
cial value  given  them  by  the  u.se 
of  plaintiff's  name  for  purjjoses  of 
trade  or  advertising.  Xo  ques- 
tion of  defendant's  good  faith  is 
necessarily  involved,  it  may  well 
have  been  misled,  liut  the  plain- 
tiff is  entitleil  to  the  relief  which 
the  statute — pa-ssed  to  remedy  a 
theretofore  irremediable  injust- 
ice {lioberson  v.  Ii>Khe.'<ter,  F.  li. 
Co.  (1902).  171  X.  Y.  M'y,  64 
N.  \'].  442) — was  intended  to  give. 
Injunction  should   is.sue." 


278  THE    LAW   OF   MOTION    PICTURES 

Plaintiff  is  not  barred  from  maintaining  the  action  by 
reason  of  his  infancy.-" 

Both  the  photographer  who  takes  the  picture  and  the 
author  who  uses  it  in  the  book  are  hable  as  joint  tort 
feasors.-^ 

Section  88. — When  not  liable  under  statute. 

The  right  of  privacy  is  purely  a  personal  right,  and  does 
not  survive  the  death  of  him  whose  right  has  been  in- 
vaded, so  as  to  give  his  personal  representative  a  cause  of 
action.--  Nor  may  it  be  exercised  by  everybody  in  his 
lifetime. 

A  person  who  has  become  prominent  in  public  affairs, 
and  whose  comings  and  goings  are  more  than  of  ordinary 
interest  to  the  public,  such  as  a  president  or  other  high 
state  official  or  a  famous  general,  has  in  fact  abandoned  his 
right  of  privacy  and  may  not  invoke  the  statute.-^     A 

■^  M widen  y.  Harris  (1911),  153  action  for  violation  of  the  right 
Mo.  App.  652;  134  S.  W.  1076;  of  privacy  under  sections  50  and 
Wyatt  V.  McCreery  and  Wyatt  51  of  the  Civil  Rights  Law  of  New 
V.  Wanamaker  (1908),  126  A.  D.  York  is  personal  in  its  character 
(N.  Y.)  650;  111  N.  Y.  Supp.  and  does  not  survive  the  death 
86.  of  the  person  to  whom  the  statute 

^^  Riddle  v.  McFadden  (1907),     gives  it. 
116  A.  D.  (N.  Y.)  353;  101  N.  Y.  "See  in  this  connection:  Cor- 

Supp.  606.  liss   V.    Walker    (1894),   64   Fed. 

Rohlmon  v.  TexUlc  Pitbl.  Co.  (C.  C.)  280;  Munden  v.  Harria 
(1916),  X.  Y.  Law  Journal,  (1911),  153  Mo.  App.  652;  134 
June  14.  See  for  lengthy  discus-  S.  W.  1070;  Va.s.sar  College  v. 
sion  of  Sections  50  and  51  of  Jjoose  Wiles  (1912),  197  Fed. 
the  New  York  Civil  Rights  Law.      (D.    C.)    982;    Colgate    v.    While 

^^  Wyatt  V.  I1all\  Port.  Studio  (1909),  169  Fed.  (C.  C.)  887; 
(1911),  71  Mi.sc.  (\.  Y.)  199;  128  180  Fed.  (C.  C.)  882  (Una!  hoar- 
N.   Y.   Supp.   247.     A  cause  of      ing). 


WHKN    NOT    IJAULK    rXUKK   STATrTK 


270 


criininul,  also,  has  no  siifh  right,  and  it  was  licld  that  he 
could  not  restrain  the  exhibition  of  his  picture  in  a 
Rogue's  Gallery.-^ 

Statutes  which  prohibit  the  use  of  the  name  or  picture 
for  advertising  purposes  are  hold  to  he  penal  and  are 
strictly  construed.  A  complaint  therefore  wliich  alleged 
that  a  picture  was  printed  in  a  magazine  "in  adornment 
thereof"  failed  to  state  a  cause  of  action.-'^    When  the 


^*Owen  V.  Partridge  (1903), 
82  N.  Y.  Supp.  248. 

**  Bytorelzski  v.  Edward  L. 
Wilson  Co.  (1917),  N.  Y.  Law 
Journal,  Jan.  24.  "The  action  is 
brought  to  recover  damages  under 
section  51  of  the  Civil  Rights 
Law,  as  amended  by  chapter 
226,  Laws  of  1911,  which  pro- 
vides as  follows:  'Any  person 
whose  name,  portrait  or  picture 
is  used  within  this  state  for  ad- 
vertising purposes  or  for  the  pur- 
poses of  trade,  without  the  writ- 
ten consent  first  obtained,  as 
above  provided,  may  maintain 
an  equitable  action  in  the  Su- 
preme Court  of  this  state  "against 
the  person,  firm  or  corporation 
so  using  his  name,  portrait  or 
picture,  to  prevent  and  restrain 
the  use  thereof,  and  may  also 
sue  and  recover  damages  for  any 
injuries  sustained  by  reason  of 
such  use,  and  if  the  defendant 
shall  have  knowingly  used  such 


person's  name,  portrait  or  picture 
in  such  manner  Jis  is  forbidden 
or  declared  to  be  unlawful  by 
the  last  section,  the  jury,  in  its 
discretion,  may  award  exemplary 
damages.  But  nothing  contained 
in  this  act  shall  be  so  construed 
as  to  prevent  any  person,  firm 
or  corporation  practicing  the  pro- 
fession of  photography  from  ex- 
hibiting in  or  about  his  or  its 
establishment  sjjecimens  of  the 
work  of  such  establishment,  un- 
less the  same  is  continued  by 
such  person,  firm  or  coriX)ration 
after  written  notice  objecting 
thereto  has  been  given  by  the 
|X!rson  portrayed.'  The  com- 
plaint in  substance  alleges  that 
defendant  owned,  ])ul>lished  and 
circulated  for  commercial  pur- 
poses in  connection  with  its 
liusiness  a  booklet  or  magazine, 
and  in  the  July  number  exhibited 
on  one  of  its  pages,  'in  lulornment 
thereof,'   the  iwrtrait  or  picture 


280 


THE    LAW   OF   MOTION    PICTURES 


statute  gives  the  right  of  action  to  "citizens"  alone,  a 
failure  to  allege  the  citizenship  of  the  plaintiff  makes  the 
complaint  demurrable. ^^ 


of  plaintiff  without  his  consent. 
The  pubUcation  of  a  person's  por- 
trait is  not  in  itself  illegal.    Rober- 
son  V.  Rochester  Folding  Box  Co., 
171  N.  Y.  538.    To  come  within 
the  statute  the  use  of  the  portrait 
must  be  for  advertising  purposes 
or  purposes  of  trade.    In  Jeffries 
V.  N.   Y.  Evening  Journal  Pub. 
Co.,  124  N.  Y.  S.  780,  it  was  held 
that  the  publication  of  a  portrait 
in  a  newspaper  in  connection  with 
the  biography  of  the  person  was 
not  within  the  statute;   that  a 
picture  is  not  used  for  advertising 
purposes  unless  it  is  part  of  an 
advertisement,  and  that  the  pur- 
poses of  trade  refer  to  commerce 
or  traffic  and  not  to  the  dissemi- 
nation   of    information.      There 
is  nothing  in  the   complaint  to 
show  either  expressly  or  by  fair 
intendment  that  the  picture  was 
used  as  part  of  an  advertisement 
or  for  purposes  of   trade,  com- 
merce  or   traffic.     It   is   alleged 
to   have    been    inserted   on    the 
top   of  the  page  'in   adornment 
thereof.'     If  inserted  for  adorn- 
ment merely,  or  for  any  other 
jjurposo  not  specified  in  the  stat- 
ute, j)l!iintifT  cannot  recover.     It 
is  stated  in  liinns  v.  Vilagrapli  Co., 


210  N.  Y.  55,  that  "the  statute 
is  very  general  in  its  terms,  but 
when  a  living  person's  name, 
portrait  or  picture  is  used  it  is 
not  necessarily  and  at  all  times 
so  used  either  for  advertising 
purposes  or  for  the  purposes  of 
trade.  The  statute  is,  in  part 
at  least,  penal,  and  should  be 
construed  accordingly.  So  con- 
strued, and  also  construed  in  con- 
nection with  the  history  of  chap- 
ter 132,  Laws  of  1903,  which  was 
enacted  at  the  first  session  of  the 
Legislature  after  the  decision 
in  the  Roberson  case,  it  does  not 
prohibit  every  use  of  the  name, 
portrait  or  picture  of  a  hving 
person."  That  its  use  was  for 
one  of  the  purposes  enumerated 
cannot  be  assumed;  it  must  be 
alleged  and  proved." 

See  also:  Merle  v.  Sociological 
Research  (1015),  100  A.  D.  (N.  Y.) 
376;  152  N.  Y.  Supp.  829. 

^''Fuller  V.  McDermott  (1904), 
87  N.  Y.  Supp.  536. 

See    also:    Lcris   v.    IJitchkock 

(1882),10(1).  (:.)Fed.  4;  U.S.  v. 

Taylor  (1880),  3  Fed.  (C.  C.)  563; 

Messenger    v.    State    (1889),    25 

Neb.  674;  41  N.  W.  638. 


WHEN    NOT    LIABLE    VNDEU    STATUTE 


2S1 


Tho  Civil  Iii^;lits  Law  as  enacted  in  New  York  was  not 
intended  to  jjrevent  tlie  dissemination  of  news,  and  it  was 
held  that  the  defendant  newspaper  was  not  nal)le  for  the 
pubhcation  of  plaintiff's  name  and  pieture  in  a  sinj^le 
issue;  to  hold  otherwise  would  be  tantamount  to  nuizzliuK 
the  press.'-" 

It  seems  that  one  may  be  estopped  from  in\'oking  the 
aid  of  the  statute,  as  where  he  has  lent  his  name  to  a  busi- 
ness in  which  his  name  or  pictiu'e  is  being  advertised, 
and  has  permitted  the  owner  of  the  business  to  expend 
large  sums  of  money  to  exploit  such  name  or  picture,-* 
or  sells  the  business  and  stock  of  a  corporation  ])earing  his 
name.-'' 


"  Moser  v.  Press  Pub.  Co. 
(190S),  59  Misc.  (N.  Y.)  78;  109 
N.  Y.  Supp.  9G3;  Colyer  v.  Fox- 
Pub.  Co.  (1914),  1G2  A.  D.  (N.  Y.) 
297;  140  N.  Y.  Supp.  990;  Jef- 
fri4;s  V.  N.  Y.  lu'ciiing  Journal 
Pub.  Co.  (1910),  67  Misc.  (X.  Y.) 
570;  124  N.  Y.  Supp.  780. 

28  Wendell  V.  Comluil  Mach.  Co. 
(1911),  74  Misc.  (N.  Y.)  201;  123 
N.  Y.  Supp.  758.  Where  one 
who  is  in  another's  employ  volun- 
tarily poses  for  a  portrait  to  be 
used  in  liis  master's  business  and 
with  knowlodRo  that  he  was  to 
make  its  j)roscnt  use  thereof,  he 
may  not,  after  the  latter  has  in- 
curred ox|)enses  in  its  use  to  build 
up  his  business  maintain  an  ac- 
tion under  the  Civil  Higlits  I^iw 
upon  the  termination  of  the  em- 


ployment, to  restrain  tho  further 
use  of  his  portrait  for  advertising 
purpo.ses.  Wyall  v.  McCreery  and 
Wyatt  V.  Wanamaker  (1908),  126 
A.  D.  (X.Y.)  050;  HI  N.  Y.  Supp. 
80,  distinguished  upon  the  ground 
of  i)laintitT's  infancy,  the  infant 
not  being  estopped  to  invoke  the 
protection  accorded  under  the 
act. 

Sec  also:  Almiiui  v.  Sea  Beach 
R.  Co.  (1913),  157  A.  D.  (X.  Y.) 
230;  141  N.  Y.  Supp.  842.  But 
see:  Bowden  v.  Avudgatnatetl  Pic- 
torials L'mld  (Eng.)  (1911),  103 
L.  T.  829. 

"ir/«7e  V.  While  (1914),  160 
A.  1).  (X.Y.)  709;  145  X.Y.  Supp. 
743.  While  this  case  holds  tiiat 
one  selling  his  right  to  a  cor^xtra- 
tion  selL-s  therewith  the  right  to 


282  THE    LAW   OF   MOTION    PICTURES 

In  no  case  will  the  court  grant  relief  pendente  lite  where 
the  plaintiff's  right  is  involved  in  doubt.'^° 

Section  89. — When  use  of  name  or  picture  is  libelous. 

It  frequently  happens  that  the  use  of  the  person's 
name  or  picture  is  not  such  as  may  be  restrained  under 
the  Civil  Rights  Law,  but  that  such  use  will  amount  to  a 
libel.  In  that  case  equity  will  not  restrain,  but  the  plain- 
tiff may  recover  damages  at  law.^^ 

Defendant  exhibited  a  ''Wliite  Slave"  film  in  which 

plaintiff's  factory  was  depicted  as  being  a  rendezvous  for 

vicious  characters.    It  was  held  that  this  amounted  to  a 

libel,  although  it  was  not  a  violation  of  the  Civil  Rights 
Law.^2 

A  publication  of  plaintiff's  portrait  in  conjunction  with 

the  use  of  his  own  name  where  in  doubt  the  court  will  not  grant 
the  corporation  had  borne  it,  it  an  injunction  pendente  Hte  con- 
seems  to  us  that  this  rule  is  taining  the  same  relief  that  would 
limited  by  the  rule  that  where  the  ultimately  be  granted  if  the 
skill  and  personal  qualities  of  the  plaintiff  succeeded  upon  the  trial 
vendor  are  peculiarly  valuable  of  the  action." 
as  in  the  case  of  an  artist,  musi-  "  Bullcrkk  Piibl.  Co.  v.  Typo- 
clan,  actor  or  director,  a  transfer  graphical  Union  (190G),  50  Misc. 
of  the  name  is  not  permissible  (N.  Y.)  1;  100  N.  Y.  Supp.  292. 
as  it  would  tend  to  work  a  fraud  A  court  of  equity  will  not  enjoin 
upon  the  public.  See  Blakcly  v.  a  libel  even  where  the  plaintiff 
Sousa  (1900),  197  Pa.  305;  47  by  reason  of  his  inabihty  to  prove 
Atl.  286.  special  damage  has  no  remedy  at 

^"Bulterick  Pvhl.  Co.  v.  Typo-  law.    (See  cases  cited  therein.) 

graphical  Union  (1900),  50  Misc.  Sec  also:  Section  12. 

(X.   Y.);   100  N,  Y.  Supp.   292.  '^■^  Merle     v.     Sociological     Re- 

" Where   plaintiffs'   right    to    the  .search  (1915),  HiO  A.  I).  (N.  Y.) 

ecjuitable  relief  sought  is  involved  376;  152  N.  Y.  Supp.  829. 


WHEN    USE    OF    N'AMK    Oil    I'KTrUK    IS    I.IUKI.Ors      2>Q 


a  wliiskey  advert isonient  was  licld  to  he  libelous,  and 
defendant  was  bound  to  resi)ond  in  damages  even  tliouj^h 
it  had  made  an  innocent  mistake.^'  And  a  newspaper  was 
held  liable  for  the  publication  of  a  picture  of  i)laintifT 


o\er  an  article  which  was 
plaintiff.^' 

"PecA:  V.  Tribune  Co.  (1908), 
214  U.  S.  IS.-);  2«)  Sup.  Ct.  o.-)4. 
PlaintilT'.s  portrait  wa.s  publislicd 
ill  defendant's  newspaper  in  con- 
nection with  an  adverti.semeiit 
of  wliiskey.  »Sonie  name  other 
than  plaintifT's  was  printed  at 
the  foot  of  the  picture.  The  court 
held  that  the  publication  of 
plaintiff's  portrait  in  connection 
with  such  an  ailvertisement  with 
the  statement  made  therein  that 
plaintiff  liad  drunk  the  whiskey 
was  libelous.  It  was  further  hekl 
that  it  was  innnaterial  whether 
the  publication  was  caused 
through  an  innocent  mistake. 

The  court  cites  in  support  of 
the  jjroposition  that  it  is  innnate- 
rial whotiicr  tlie  error  is  causetl 
iimocently.  King  v.  WoodJalL 
(Eng.)  Lofft.  776,  781;  Hearne  v. 
SUmrll  (Eng.)  12  A.  and  ]•:.  719, 
720;  Shi'jihedidv.  ]yhil(ikTr  (Eng.), 
L.  R.  10  ('.  P.  502;  Clark  v.  Xorth 
American  Cb.  (1902),  20;i  Pa.  St. 
346;  53  Atl.  237;  Moraase  v. 
Bruchn  (1890),  151  Mass.  507;  25 
N.  E.  74. 


true  of  another  but  not   of 


See  generally:  De  Sandn  v.  Xew 
York  Herald  Co.  (1904),  .S.S  A.  D. 
(X.  Y.)  492;  85  N.  V.  Supp.  Ill; 
Clary-Squire  v.  Presa  Publ.  Co. 
(1901),  58  A.  D.  (X.  Y.)  .362;  6.S 
X.  Y.  Supp.  1028;  Farley  v. 
Ercning  Chronicle  Publ.  Co. 
(1905),  113  Mo.  App.  216;  Emer- 
son V.  Nash  (11X)5),  124  Wi.sc.  369; 
102  X.  \V.  921;  Wandl  v.  HearsCx 
Chicago  American  (1906),  129 
Wis.  429;  109  X.  W.  70;  Foster 
Milburn  Co.  v.  Chinn  (1909),  134 
Ky.  424;  120  S.  W.  3&4;  Morrison 
V.  Smith  (1904),  177  X.  Y.  360; 
69  X.  E.  725;  Hart  v.  Woodbury 
Dei-mat.  Institute  (1906),  113 
A.  D.  (X.  Y.)  281 ;  98  X.  Y.  Supp. 
1000;  Taylor  v.  Hearst  (1895), 
107  Cal.  262;  40  Pac.  392;  Pair- 
sich  V.  Xew  England  (1904),  122 
Cla.  190;  .50  S.  E.  68. 

"  Farley  v.  Ercning  Chronicle 
Co.  (1905),  113  Mo.  App.  210; 
87  S.  W.  565. 

Rose  Ball  v.  The  Tribune  (1905), 
12,3  111.  App.  235.  Where  de- 
fendant's iu'ws|)apcr  iiriiitcii  an 
article  and  picture,  the  likeuesd 


284  THE    LAW   OF   MOTION    PICTURES 

In  one  case  it  has  been  held  that  where  the  libel  pub- 
lished related  to  the  family  as  a  whole,  a  cause  of  action 
arose  to  each  member  of  the  family.^^ 

Section  90. — Weekly  news  motion  pictures. 

The  issuance  of  motion  pictures  as  ''Weekly  News" 
wherein  are  depicted  the  current  events  of  the  day,  has 
become  a  regular  feature  of  several  of  the  larger  producers. 
The  scenes  are  taken  from  the  actual  happenings,  and  are 
reproduced  without  any  embelHslmients  or  changes 
whatsoever. 

The  position  taken  by  the  motion  picture  producers  is 
that  their  "Weekly  News  Service"  has  become  one  of  the 
means  of  disseminating  news,  and  is  to  all  intents  and  pur- 
poses a  newspaper  with  all  the  rights  and  privileges  of 
the  press. 

They  contend  that  since  newspapers  are  not  pro- 
hibited by  the  Civil  Rights  Statutes  from  printing  and 
publishing  the  hkenesses  of  persons  ^^  they  as  well  have  the 

being  that  of  plaintiff,  but  the  photographed    and    her    picture 

article  referring  to  one  as  "young  printed  in  defendant's  magazine, 

composer  secured  morphine  late  "When    the    statute    was    en- 

in  the  night  of  her  dcatli,"  relat-  acted  originally  in  1903  the  cus- 

ing    to    another    person,   held    a  torn  of  publishing  in  papers  the 

question  for  the  jury.  portraits  of  individuals  who  were 

36  FcnMcrmaker  v.  Tribune  Pub.  distinguished   in    their   activities 

Co.  (1805),  12  Utah,  439;  43  Pac.  of  life  was  very  general.     If  the 

112.  Legislature  had  intended  to  wii)e 

'•C'o/yer  V.  Richard  Fox  Pnh.  out  this   custom,  it  could   have 

Co.  (1914),  162  A.  D.  (N.Y.)  297;  said   so   easily    in    positive    lan- 

1  U)  N.  Y.  Sujip.  999.    The  plain-  guage." 

tilT,  a  professional  high-diver,  was  JiJJrics  v.  N.  Y.  Evening  Juur- 


WEEKLY    NEWS    MOTION    PICTURES  2H,') 

right  to  reproduce  sucli  likenesses  in  tlieir  current  event 
services. 

This  question  was  squarely  presented  to  a  court  for  the 
first  time  in  the  case  of  IIuTJiiston  v.  Universal  Film  Mfg. 
Co.  where  the  learned  justice  held  that  the  motion  i)icture 
industr}',  as  a  whole,  was  a  private  enterprise  and  that 
there  were  no  substantial  points  of  resemblance  between 
the  motion  picture  weekly  news  service  and  the  newspaper. 
For  that  reason  the  court  held  that  the  motion  i)icture 
reproduction  and  exhibition  of  a  portrait  of  a  prominent 
woman  lawyer,  featuring  her  in  a  sensational  news  event, 
constituted  an  invasion  of  her  personal  rights  under  the 
statute. 

In  view  of  the  importance  of  this  decision  the  entire 
opinion  is  given  below. ^"  It  must,  however,  be  remem- 
bered that  it  is  not  a  decision  of  a  court  of  last  resort. 

7MiZ  (1910),  G7  MLsC.  (X.  Y.)  570;  ture  of  a  pugilist  or  president 
124  N,  Y.  Supp.  780.  Plaintiff,  would  bring  the  case  within  the 
u  famous  jnigilist,  .sought  under  statute  where  that  oi  an  obscure 
Section  51  of  the  Civil  Rights  and  (juiet  citizen  would  probal>Iy 
Law  of  N.Y.  (formerly  Cliap.  132,  not;  nor  docs  ho,  indeed,  object 
Laws  1903)  to  enjoin  the  defend-  to  his  picture,  except  in  couuec- 
unt  from  publishing  a  biography  (ion  with  his  biography.  Motion 
in  which  he  was  pictured.  for  tenii-K)rar>' injunction  denied." 
The  court  there  held:  "In  "  Iluinistun  v.  I'niirrsnl  Film 
my  opinion  a  picture  is  not  used  Mfg.  Co.  (1917),  X.  Y.  Law 
'for  advertising  purpo.ses  witiiin  Journal,  Aug.  10th,  Ordway  J.: 
its  meaning  unless  the  picture  Motion  for  injunction  iM?ndcntc 
is  part  of  an  advertisement,  while  lite  to  restrain  defendants  from 
'trade'  refers  to  'commerce  or  using  and  disphiying  the  plaintiff's 
traffic,'  not  to  the  dissemination  name,  photograph  and  portrait 
of  information.  According  to  the  in  their  moving  picture  fihns,  con- 
plaintiff's   construction    the    pic-  trary  to  the  provisions  of  sectiona 


286 


THE    LAW    OF    MOTION    PICTURES 


Whether  or  not  it  will  be 
*' weekly  news  service"  is  in 

50  and  51  of  the  Civil  Rights  Law. 
The  defendants  have  organized 
and  are  conducting  a  business 
called  the  "Universal  Animated 
Weekly,"  in  which  they  produce 
and  distribute  for  use  by  their 
customers  reels  of  films  of  motion 
pictures,  which  are  photographs 
of  actual  current  events  which 
they  deem  of  public  interest. 
These  reels  are  produced  and 
distributed  weekly  and  are  ex- 
hibited all  over  the  country  in 
moving  picture  theatres  as  soon 
as  possible  after  the  occurrence 
of  the  events  depicted.  The  de- 
fendants furnish  with  them  to 
their  customers  posters  which 
are  used  as  bulletins  for  display 
outside  of  the  place  of  exhibition 
to  inform  the  public  what  will  be 
shown  within.  The  defendants 
admit  that  "this  service  is  mar- 
keted and  sold"  by  them,  and  is 
"a  source  of  substantial  profit" 
to  the  defendants. 

In  their  reel  of  films  used  as 
alK)ve  described  and  called  "  Uni- 
versal Animated  Weekly  No,  77," 
tlie  defendants  have  included 
photographs  or  pictures  of  the 
))laiiitin"  accompanied  with  th(; 
following  "legends:" 

"Woman  lawyer  solves  Ruth 


finally  determined  that  the 
its  essence  a  newspaper,  the 

Cruger  mystery.  After  world- 
wide search,  Mrs.  Grace  Humis- 
ton's  persistent  efforts  lead  to 
discovery  of  high  school  girl's 
murder — New  York  City.  Sub. 
The  woman  who  succeeded  where 
police  failed — Mrs.  Grace  Humis- 
ton.  In  Cocchi's  cellar — passed 
by  millions — the  crime  was  hidden 
for  months.  Thousands  attracted 
to  scene  of  crime." 

They  have  also  furnished  post- 
ers or  publicity  matter  accom- 
panying said  number  of  the 
"Weekly"  films,  to  be  used  by 
their  customers  as  above  de- 
scribed, containing  in  largedisplay 
type  the  same  words  as  appear  in 
the  main  legend  above  quoted. 
These  reels  of  films  and  posters 
are  being  used  by  at  least  fifty 
customers  of  the  defendants  in 
moving  picture  theatres  in  New 
York  City  and  other  parts  of  the 
country. 

The  plaintiff  has  not  given  her 
written  consent  to  this  use  of  her 
name  and  picture,  and  now  brings 
suit  for  an  injunction  against 
such  use  and  for  damages.  In 
my  opinion  this  case  cannot  be 
distinguished  in  principle  from 
the  case  of  Jh'niis  v.  Vilnxjraph  Co., 
210  N.  Y.  51.     The   defendants 


WEEKLY    NEWS    MOTION    PICTURES 


2H'i 


})roducer  may  in  no  event  under  a  statute  of  this  kind, 
take  the  name  or  photograph  of  a  person  without  his  con- 
Weekly"  and  are  pnKluce<l  and 
distributed  weekly  and  used  as 
soon  as  pKJSsible  after  the  occur- 
rence of  tlic  events  does  not  make 
them  a  ne\vsi)a[X'r,  or  \mng  them 


attempted  to  distinguish  it  on 
the  ground  that  in  the  liinns 
case  the  films  were  not  photo- 
graphs of  an  actual  event  and  of 
actual  i)cople,  hut  were  photo- 
graphs of  actors  ix)sed  for  the  pur- 
p<jse  and  of  scenery  simulatinii; 
the  actual  scenes  of  the  wreck  of 
the  "Repul)lic,"  that  is,  were 
really  a  photoplay,  whereas  in 
this  case  the  films  are  photo- 
graphs of  actual  people  and 
events  precisely  as  they  acted 
and  happened,  and  further  argue 
that  there  is  a  legal  distinction 
between  photoplay  as  commonly 
known  and  used  and  tlieir  service, 
whicli  they  contend  is  a  regular 
weekly  news  service  for  tlie  dis- 
semination of  information  to  the 
jHiblic,  and  analogous  to  a  regular 
newspaper  or  at  least  to  a  weekly 
newspajK'r  or  magazine. 

In  my  opinion  there  is  no 
foundation  for  an}'  legal  distinc- 
tion between  the  two  cases.  The 
"information"  which  is  being 
"disseminated"  by  defendants' 
films  is  of  the  same  character  as 
that  "disseminated"  by  the  Binns 
films.  The  fact  that  the  de- 
fendants' films  are  photographs 
of  actual  current  eveiits  and 
are  called  "Universal   Animatal 


within  the  protection  extended  to 
newspapers  by  the  cases  of  Colyer 
V.  Fox  Publishing  Co.,  162  A  pp. 
Div.  297,  and  Jcjfnct  v.  N.  Y. 
Evening  Juurnal  Publishing  Co., 
67  Misc.  .j70,  on  which  defend- 
ants rely.  I  do  not  understand 
that  in  those  cases  the  courts 
founded  their  tlecisions  ui)on  the 
constitutional  i)rotection  of  the 
freedom  of  the  press,  and  defend- 
ants expressly  disclaim  that  they 
are  relying  upon  such  constitu- 
tional provisions.  As  I  under- 
stand those  cases  the  courts 
merely  held  that  the  I>egislature 
did  not  intend  bj'  chapter  l'.i'2 
of  the  Laws  of  15)03,  now  .sections 
50  and  51  of  the  Civil  Rights 
Law,  to  extend  the  prohibitions 
of  that  statute  to  newspapers. 
But  that  is  very  far  from  holding 
that  such  a  service  as  the  de- 
fendants conduct  is  a  ncwspa|X'r 
or  tiiat  the  acts  complainotl  of  are 
not  prohibited  by  the  statute. 
Tlie  Supremo  Court  of  tlie  I'nited 
States  lias  recently  had  occasion 
to  consider  the  character  of  sucli 


288 


THE    LAW   OF   MOTION    PICTURES 


a  service  in  the  case  of  Mutual 
Film  Corporation  v.  Industrial 
Commission  of  Ohio,  236  U.  S.  230, 
where  the  question  was  involved 
of  the  constitutionaUty  of  a 
censorship  of  a  service  which 
included  (p.  232)  "events  of 
historical  and  current  interest — 
the  same  events  which  are  de- 
scribed in  words  and  by  photo- 
graphs in  newspapers,  weekly 
periodicals,  magazines  and  other 
publications,  of  which  photo- 
graphs are  promptly  secured  a 
few  days  after  the  events  which 
they  depict  happen,  thus  regularly 
furnishing  and  publishing  news 
through  the  medium  of  motion 
pictures  under  the  name  of  "Mu- 
tual Weekly,"  and  said  (p.  244): 
"It  cannot  be  put  out  of  view 
that  the  exhibition  of  moving 
])ictures  is  a  business  pure  and 
simple,  originated  and  conducted 
for  profit,  like  other  spectacles, 
not  to  be  regarded,  nor  intended 
to  be  regarded  by  the  Ohio  Con- 
stitution, we  think,  as  part  of 
the  press  of  the  country  or  as 
organs  of  public  opinion." 

The  defendants  argue  that  they 
are  not  using  the  plaintilT's 
name  and  picture  "for  adver- 
tising purposes  or  for  the  pur- 
poses of  trade."  I  cannot  agree 
with  them.  The  films  arc  used 
in  the  defendants'  regular  busi- 


ness, for  purposes  of  profit, 
and  the  posters  are  used  to  ad- 
vertise the  films  and  to  induce 
the  public  to  patronize  the  the- 
atres where  the  films  are  exhibited. 
In  other  words,  the  defendants 
are  exploiting  the  plaintiff's 
name  and  picture  in  their  busi- 
ness for  profit,  and  even  if  they 
are  incidentally  disseminating  in- 
formation as  to  current  news  of 
the  day,  the  plaintiff  has  the 
right  to  object  and  to  an  injunc- 
tion against  the  continuance  of 
such  conduct.  In  Blnns  v.  Vita- 
graph  Co.,  supra,  the  court  said 
(p.  58): 

"We  hold  that  the  name  and 
picture  of  the  plaintiff  were 
used  by  the  defendant  as  a  matter 
of  business  and  profit  and  con- 
trary to  the  prohibition  of  the 
statute.  It  is  urged  that  there  is 
danger  of  serious  trouble  in  the 
practical  enforcement  of  any  rule 
which  may  be  adopted  in  con- 
struing and  enforcing  the  statute 
so  far  as  it  relates  to  purposes 
of  trade.  If  there  is  any  basis  for 
the  suggestion  of  danger  in  en- 
forcing a  part  of  the  statute 
under  consideration  it  is  the  duty 
of  the  Legislature  to  repeal  such 
part  thereof,"  etc. 

As  the  court  said  in  Almind  v. 
8ea  Beach  Railway  Co.,  157  App. 
Div.    230,    232:    "The    right    of 


WEEKLY    NEWS    MOTION    PICTURES 


289 


privacy  under  tlio  statute  caiuiut 
be  invaded  for  purposes  purely  in- 
formative or  redemptive,  whether 
the  altruist  We  entirely  a  chari- 
table envoy  or  a  railway  company. 
No  cause  is  so  exalted  that  it 
may  allure  by  exposing  the  por- 
trait of  a  i)erson  to  the  public 
gaze." 

The  defendants  argue  that  if 
this  motion  is  granted  it  will 
seriously  interfere  with,  if  not 
destroy,  their  business,  which 
gives  information  as  to  current 
events  and  innocent  amusement 
to  thousands,  and  they  set  out 
at  length  the  services  they  are 
rendering  to  the  government  and 
to  the  Red  Cross  in  connection 
with  the  present  war  and  the 
activities  of  good  citizens  in  con- 
nection therewith.  Even  if  this 
were  true,  the  remedy  is  by  an 
api)eal  to  the  Legislature,  but  the 
results  they  pretend  to  fear  are 
not  likely  to  follow.  While  I 
am  not  called  on  t(^  decide  the 
point,  it  is  not  probable  that  any 
court  will  enjoin  the  use  of  moving 
picture  films  of  current  events  of 
real  public  importance,  because 
they  happen  as  a  mere  incident 
to  include  among  many  the  pic- 
ture of  an  individual.  As  the 
court  said  in  the  Binns  ca.se 
(p.  57):  "It  is  not  neces.sary  in 
this  opinion  to  discuss  the  tiucs- 


tion  whether  a  {jcrson,  firm  or 
corporation  would  \)c  liable  under 
the  statute  for  making  and  using 
a  picture  of  a  living  |x;rson  when 
it  is  included  in  a  picture  of  an 
actual  event  in  which  such  {X-'r- 
son  was  an  actor,  and  such  pic- 
ture is  a  mere  incident  to  the 
actual  event  portrayed.  The 
use  of  the  plaintiff's  name  and 
picture,  as  shown  by  the  testi- 
mony in  tliis  case,  was  not  a 
mere  incident  to  a  general  picture 
representative  of  the  author's  un- 
derstanding of  what  occurred  at 
the  wreck  of  the  RcpubUc." 

There  is  a  clear  distinction  be- 
tween a  merely  incidental  and 
fortuitous  use  of  an  individual's 
picture  as  an  incident  to  some  im- 
portant public  event,  and  the 
exploitation  of  that  individual 
as  the  important  and  central  part 
of  an  event  which  is  not  of 
real  public  importance,  however 
gr(>at  may  be  the  public  interest 
therein.  In  this  case  it  is  clear 
that  Mrs.  Humiston's  name  and 
picture  are  the  main  pwint  of 
that  part  of  defendants'  film  re- 
lating to  the  Cniger  murder,  and 
that  the  tlefendants  are  seeking 
by  the  use  of  her  name  and  pic- 
ture to  make  money  out  of  her 
reputation  and  prominence.  She 
is  not  the  commander  of  an  army, 
a  visiting  amliassador  or  even  a 


290 


THE   LAW   OF  MOTION   PICTURES 


sent,  weave  fiction  about  it  and  represent  the  whole  in 
motion  pictures. ^^ 


public  official,  but  a  private 
citizen  practicing  her  profession 
as  a  member  of  the  bar,  who  is 
entitled  to  be  protected  in  her 
right  of  privacy. 

It  is  conceded  that  the  plaintiff 
gave  no  written  consent  to  the 
use  of  her  name  and  picture, 
and  although  it  is  claimed  that 
she  orally  consented  she  denies 
that  fact,  and  it  is  immaterial 
on  this  motion.  So  also  the 
fact,  if  it  be  a  fact,  that  her  name 
and  picture  have  appeared  fre- 
quently with  her  consent  in  the 
daily  newspapers  is  not  material 
on  this  motion.  All  these  facts 
may  perhaps  be  material  on  the 
question  of  her  damages,  but  that 
is  not  before  me  now.  As  Judge 
Gray  said  in  the  case  of  Roberson 
V.  Rochester  Folding  Box  Co.,  171 
N.  Y.  538,  at  p.  5GG:  "It  would 
be,  in  my  opinion,  an  extraor- 
dinary view  which,  while  con- 
ceding the  right  of  a  person  to  be 
protected  against  the  unauthor- 
ized circulation  of  an  unpublished 


lecture,  letter,  drawing,  or  other 
ideal  property,  yet,  would  deny 
the  same  protection  to  a  person 
whose  portrait  was  unauthor- 
izedly  obtained  and  made  use  of 
for  commercial  purposes.  The 
injury  to  the  plaintiff  is  irrepar- 
able, because  she  cannot  be 
wholly  compensated  in  damages 
for  the  various  consequences  en- 
tained  by  defendant's  acts.  The 
only  complete  relief  is  an  in- 
junction restraining  their  con- 
tinuance. Whether,  as  incidental 
to  that  equitable  relief,  she  should 
be  able  to  recover  only  nominal 
damages  is  not  material,  for  the 
issuance  of  the  injunction  does 
not,  in  such  a  case,  'depend  upon 
the  amount  of  the  damages  in 
dollars  and  cents." 

Motion  for  injunction  during 
tlie  pendency  of  this  action 
granted  on  plaintiff  giving  an 
undertaking  in  the  sum  of  $2,500. 

'^  Binns  v.  Vitagraph  (1913), 
210  N.  Y.  51;  103  N.  E.  1108. 


CHAPTER  VII 

THE    PUBLIC    (continued) 

Tlieatre  Proprietor's  Duty 

Sec.  !)1.  Kiglil  to  exclude  patrons. 

92.  Liai)ility  for  injuries  sustained  l)y  i)atron.s— In  general. 
O.'i.  Falling  over  balcony. 

94.  .Seats  and  floors. 

95.  Tripping  in  darkened  theatre — aisles — stejxs — exitw. 

96.  Articles  dropping. 

97.  Wild  animals. 

98.  Crowds. 

99.  Hurt  by  performer. 

100.  Miscellaneous  accidents. 

101.  Acts  of  strangers. 

102.  Assault. 

103.  Who  is  liable. 

104.  Property  lost  in  theatre. 

Section  91. — Right  to  exclude  patrons. 

The  e.xc'lu.siou  of  certain  people  or  ela.sses  of  people  from 
the  motion  picture  theatre  i.s  another  one  of  the  j)ul)hc's 
rights  wliich  has  assumed  considerable  importance,  antl 
whicli  has  l)een  the  subject  of  statutory  enactment. 

Under  the  common  law  a  theatre  i)roprietor  could  ex- 
clude whom  he  wished.'     It  was  held  in  the  leading  case 

'ColUxkr  V.  Ilm/man  (1905),  v.  Ward  (1911),  203  X.  V.  .T)!; 
18.3  N.  Y.  2.50;  76  N.  E.  20;  96  X.  K.  736;  I'coplc  ix  rcl. 
1  L.  R.  A.  (X.  S.)  1188;  Aaron     Burnham   v.    Fh/nn    (1!)07).    180 

291 


292 


THE    LAW   OF   MOTION    PICTURES 


of  Purcell  V.  Daly  that  the  ticket  of  admission  was  merely 
a  revocable  Ucense,  and  that  the  only  penalty  which  the 
proprietor  of  the  theatre  would  incur  for  its  revocation 
would  be  the  cost  of  the  ticket  and  incidental  loss  suffered.^ 
As  the  relationship  is  a  purely  contractual  one,  a  refusal  to 


N.  Y.  180;  82  N.  E.  169;  People  v. 
Ki7ig    (1888),    110    N.    Y.    418; 
18    N.    E.    245;    Luxemburg    v. 
Keith  (1909),  64  Misc.   (N.  Y.) 
69;  117  N.  Y.  Supp.  979;  Purcell 
V.  Dahj  (1886),  19  Abb.  N.  C. 
(N.  Y.)  301;  Marrone  v.  Wash. 
Clvb  (1912),  227  U.  S.  633;  33 
Sup.  Ct.  401;  Wood  v.  Leadbitter 
(Eng.)  (1845),  13  M.  &  W.  838; 
Shubert  V.  Nixon  (1912),  83  N.  J. 
L.  101;  83  Atl.  369;  McCrea  v. 
Marsh  (1858),  12  Gray  (Mass.), 
211;  Burton  v.  Schepf  (1861),  1 
Allen   (Mass.),  133;   Johnson    v. 
Wilkinson   (1885),  139  Mass.  3; 
29  N.  E.  62;  Greenburg  v.  West. 
Turf  (1903),  140  Cal.  357;  73  Pac. 
1050;  148  Cal.  126;  82  Pac.  684; 
aff'cl  204  U.  S.  359;  27  Sup.  Ct. 
3S4;   Taylor  v.  Cohn   (1906),  47 
Ore.  538;  84  Pac.  388;  Meisner 
V.  Detroit  (1908),  154  Mich.  545; 
118  N.  W.  14;  Bucnzlc  v.  Newport 
Ass'n  (1908),  29  II.  I.  23;  68  Atl. 
721;    Homey    v.    Nixon    (1905), 
213  Pa.  20;  61  Atl.  1088;  W.  W.  V. 
Co.  V.  Black  (1912),  113  Va.  728; 
75   S.   E.   82;    Taylor   v.    Waters 
(Eng.),  7  Taunt.  374;  Younger  v. 


Judah  (1892),  111  Mo.  303;  19 
S.  W.  1109;  Boswell  v.  Barnum 
(1916),  185  S.  W.  (Tenn.)  692; 
Rex  V.  Jones  (Eng.)  1  Leach  C.  C. 
204;  Pearce  v.  Spaulding  (1882), 
12  Mo.  App.  141. 

^Purcell  V.  Daly  (1886),  19 
Abb.  N.  C.  (N.  Y.)  301.  "The 
proprietor  of  a  theatre  has  a  per- 
fect right  to  say  whom  he  will  or 
will  not  admit  to  his  theatre, 
and  should  any  one  apply  at 
the  box-office  of  a  theatre  and 
desire  to  purchase  tickets  of 
admission,  and  be  refused,  there 
can  be  no  ([uestion  that  he  would 
have  no  cause  of  action  against 
the  proprict(jr  of  the  theatre  for 
such  refusal.  And  in  the  same 
way,  if  tickets  are  sold  to  a  person 
the  proprietor  may  still  refuse 
admission,  in  which  case  the 
proprietor  would  be  compelled 
to  refund  only  the  price  paid  for 
the  tickets  of  admission,  together 
with  such  other  oxjiense  as  the 
party  might  iiave  l)een  put  to, 
but  which  exixinse  must  be 
directly  connected  with  the  issuing 
of  the  ticket  of  admission." 


RIOHT   TO    KXrrj'DE    PATRON'S 


293 


admit  one  who  lias  purchased  a  ticket  is  a  breach  of  the 
contract  and  nothin<5  niore.^ 

Not  only  may  the  proprietor  refuse  admission  to  a 
ticket  holder,  but  he  ma}'  refuse  in  the  absence  of  a  pro- 
hibilory  statute,  to  sell  a  ticket  to  any  particular  person. 
Under  the  doctrine  that  tlu^  theatn;  is  a  purely  private 
enterprise,  the  proprietor  may  contract  with  whomsoever 
he  pleases. 

He  may  also  attach  any  condition  to  the  sale  of  the 
ticket  that  he  sees  fit,  and  where  the  ticket  is  sold  sub- 
ject to  a  condition  that  it  be  not  resold  on  the  sidewalk 
by  a  speculator,  and  such  condition  is  brought  to  the 
attention  of  one  buying  it  at  or  before  its  purchase,  the 
proprietor  may  exclude  the  purchaser  from  admission.^ 


^  Homey  v.  Nixon  (1905),  2i;{ 
P:i.  20;  01  All.  108S;  1  L.  R.  A. 
(N.S.)  1184.  "Tl»e  proprietor  of 
a  theatre  is  a  private  individual, 
eiig;iKe(.l  in  a  strictly  i)rivate  busi- 
ness, wliicli,  thougli  for  entertain- 
ment of  the  public,  is  always  lim- 
ited to  those  wlioni  lie  may  aj^ree 
to  admit  to  it.  There  is  no  duty 
as  in  the  case  of  a  common  carrier, 
to  admit  everyone  vviio  may  apply 
and  be  willing  to  pay  for  a  ticket, 
for  the  theatre  proprietor  has  ac- 
quired no  peculiar  rights  and  priv- 
il(>ges  from  the  slate,  and  is  tlicrc- 
forc  under  no  imphed  obligation  to 
serve  the  pul)lic.  When  he  sells  a 
ticket  he  creates  contractual  re- 
lations with  the  holder  of  it,  and 


whatever  duties  on  liis  part 
grow  out  of  these  relations,  he  Is 
bound  to  perform  or  respond  in 
damages  for  the  breach  of  his 
contract,  if  it  is  of  that  only  that 
complaint  can   be  made." 

Weis  V.  Skinner  (101.')),  178 
S.  W.  (Tex.)  34. 

(hi  the  question  whether  one  who 
hid/s  a  scat  may  demand  Ifie  re- 
liini-  (if  his  money  if  the  house  is 
full  see:  Lewis  v.  Arnold  (Eng.) 
(1H.30),  4  C.  &  P.  354,  which  holds 
that  he  is  entitletl  to  a  refund  of 
his  money. 

Wollislcr  V.  Ilayman  (1()05), 
18,3  X.  V.  2.-)0;  76  N.  E.  20;  1  L.  R. 
A.  (X.  8.)  1188. 


294 


THE    LAW   OF   MOTION    PICTURES 


And  he  may  revoke  the  Ucense  either  before  or  after  ad- 
mission ■'  and  may  even  eject  him.^ 

The  mere  fact  that  the  theatre  is  Ucensed  does  not 
make  it  a  pubhc  or  quasi-pubHc  institution.  The  hcense 
conferred  is  not  in  the  nature  of  a  franchise  as  in  the  case 
of  a  common  carrier/  for  in  the  case  of  the  latter  the  state 
delegates  certain  of  its  rights  and  powers  to  the  holder 
of  the  license,  whereas  in  the  case  of  a  theatre  the  hcense 
is  in  the  nature  of  a  special  tax.^ 

To  overcome  the  evils  which  grew  out  of  the  applica- 


^Boswell  V.  Bamum  &  Bailey 
(1916),  185  S.  W.  (Tenn.)  692. 
"Amusement  places  are  private 
enterprises,  and  the  law  does  not 
confer  upon  the  public  the  right 
to  demand  admission  thereto. 
No  legal  duty  is  breached  by 
refusing  admission  to  anyone, 
or  excluding  anyone  after  ad- 
mission. If  such  person  had 
bought  a  ticket  there  is  a  breach 
of  contract,  but  there  is  no  tort." 

«  Marrone  v.  Wash.  Jockey  Club 
(1912),  227  U.  S.  633;  33  Sup.  Ct. 
401;  43  L.  R.  A.  (N.  S.)  961. 
"The  fact  that  the  purchase  of 
the  ticket  made  a  contract  is 
not  enough.  A  contract  binds 
the  person  of  the  maker,  but  does 
not  ('reat(!  an  interest  in  the  prop- 
erty that  it  may  concern,  unless 
it  also  operates  as  a  conveyance. 
.  .  .  B\it  if  it  did  not  create  such 
an  interest,  that  is  tf)  say,  a  right 


in  rem,  valid  against  the  land- 
owner and  third  persons,  the 
holder  had  no  right  to  enforce 
specific  performance  by  self-help. 
His  only  right  was  to  sue  upon 
the  contract  for  the  breach." 

The  court  upholds  the  right  of 
the  proprietor  to  eject  the  ticket 
holder  after  the  revocation  of  the 
license  if  he  refuses  to  leave  the 
premises.  To  the  same  effect: 
People  V.  Hart  (1910),  56  111. 
App.  523;  Shubert  v.  Nixon  (1912), 
83  N.  J.  L.  101;  83  Atl.  369. 

'' Collister  v.  Hayman  (1905), 
183  N.  Y.  250;  76  N.  E.  20.  "A 
theatre  may  be  licensed,  like  a 
circus;  but  the  license  is  not  a 
franchise,  and  does  not  place 
the  proprietors  under  any  duty 
to  the  publi(r  or  under  any  obli- 
gation to  keep  the  place  open." 

Ulorney  v.  Nixnn  (1905),  213 
Pu.  20;  61  Atl.  1088. 


RIGHT    TO    EXfU'DK    PATRONS  2(>.' 

tion  of  the  foroKoiiis  d<)ctriiK%  tlio  Federal  Government '' 
and  the  several  states  have  enacted  statutes  making  it 
unlawful  generally  to  discriminate  against  members  of 
th(^  public  because  of  their  "race,  creed  and  color."  These 
statutes  being  in  derogation  of  the  conmion  law,  have 
been  strictly  construed,  and  unless  the  exclusion  has  been 
})(>cause  of  the  race,  creed  or  color  of  the  individual  ex- 
cluded, he  has  no  remedy  against  the  pn^prietor. 

This  proposition  is  singularly  illustrated  in  Woolcott  v. 
Shubert '°  where  the  defendants  sought  to  exclude  from 
their  theatres  a  critic  of  the  "New  York  Times"  on  the 
ground  that  his  criticisms  of  their  productions  had  been 
highly  displeasing  to  them.  In  New  York  there  was  a 
statute  at  the  time  when  this  action  was  brought  which 
provided  that  "all  persons  within  the  jurisdiction  of 
this  State  shall  be  entitled  to  the  full  and  equal  accom- 
modations, advantages  and  privileges  of  any  place  of 
public  accommodation,  resort  or  amusement,  subject 
only  to  the  conditions  and  limitations  established  by 
law  and  applicable  alike  to  all  persons."  '^  The  statute 
further  provided  that  no  person  shall  directly  or  indirectly 
refuse  to  accord  the  same  acconmiodations,  advantages 
and  privileges  to  any  person  on  account  of  his  "race, 
creed  or  color." 

The  Court  of  Appeals  held  that  the  management  was 
limited  in  its  undoubted  right  to  exclude  the  plaintiff 
only  by  the  Civil  Rights  Law  "except  for  reasons  ap- 
phcable  alike  to  all  citizens  of  every  race,  creed  or  color." 

» Civil  Rights  Act,  18  Stat.  335.  "  Uws  1913,  Chap.  265  (New 

^°  Woolcott    V.    Sfnibcrt    (1916),      York). 
217N.  Y.  212;  111  N.  E.  829. 


296  THE    LAW   OF   MOTION   PICTURES 

Since  Woolcott  was  a  critic  writing  for  pay,  and  the  dis- 
crimination against  him  was  not  based  on  race,  creed  or 
color,  but  was  based  on  his  criticisms  of  the  defendants' 
plays,  the  court  held  that  he  could  not  enjoin  the  de- 
fendants.^^ 

The  reasoning  in  that  case  follows  closely  the  prin- 
ciples laid  down  in  the  Civil  Rights  cases,  ^^  where  the 
Federal  Statute  was  held  to  be  constitutional,  and  wherein 
it  was  decided  that  in  the  absence  of  any  other  statutes 
preventing  them,  proprietors  could  exclude  from  their 
theatres  persons,  if  the  exclusion  was  based  on  some- 
thing other  than  race,  creed  or  color. 

On  the  other  hand,  the  Civil  Rights  Statute  of  California 
provides  that  any  orderly  person  presenting  a  ticket  of 
admission  acquired  by  purchase  is  entitled  absolutely 
to  admission.  It  was  there  held  that  such  ticket  holder 
on  being  excluded  from  a  race  course,  was  entitled  to 
recover  the  penalty  under  the  statute,  although  his  ex- 
clusion had  been  based  upon  some  ground  other  than 
race,  creed  or  color.  ^'* 

'2  See:  Grannan  v.  Weslchesler  conspiracy  to  prevent  one  from 
/2ac.  i4ss'n  (1897),  153  N.  Y.  449;  exercising  his  lawful  trade,  and 
47  N.  E.  896.  it  was  held  that  they  could  law- 
People  ex  rel.  Burnharn  v.  Flynn  fully  exclude  such  critic  from  their 
(1907),  189  N.  Y.  1<S();  82  N.  K.  theatres. 

109.    An  as-sociation  of  theatrical  "Civil    Rights    Ca.ses    (1883), 

managers  combining  to  exclude  a  109  U.  S.  3. 

critic  from  witiiessiiig  their  p(>r-  ^*Grecnbcrg    v.    Western    Turf 

formances  on  tlic  ground  that  his  Assoc'n    (1903),    140    Cal.    357 

criticisms    were    scurrilous    and  73    Pac.     1050;    118    C/al.     12G 

highly   unfair   was   held   not   to  82  Pac.  G84;  alf'd  204  U.  S.  359 

violate  the  law  with  respect  to  27  Sup.  Ct.  384. 


RTCnT   TO   EXCLFDE    PATRONS  297 

While  it  was  tho  atn-optod  rulo  in  England  since  184") 
when  Wood  v.  Ledbitter  was  decided,  that  a  ticket  was  a 
revocable  license  and  could  he  revoked  either  before  or 
after  entry  into  tho  theatre,  the  recent  English  case  of 
Hiirsl  V.  Ficlurc  Theatres  has  modified  this  rule.''  There 
plaintiff  had  purchased  a  ticket  entitling  him  to  an  un- 
reserved seat,  entered  the  theatre,  and  occupied  a  seat 
therein.  Shortly  after  the  commencement  of  the  per- 
formance he  was  requested  to  leave  the  auditorium,  and 
uiK)n  his  refusal  to  do  so,  force  was  threatened,  and  he 
walked  out. 

The  prevailing  opinion  held  that  "the  hcense  was  a 
license  to  enter  the  building  and  see  the  spectacle  from 
its  commencement  until  its  termination.  .  .  .  The  de- 
fendants had,  I  think,  for  value  contracted  that  the 
j^laintiiT  should-  see  a  certain  spectacle  from  its  com- 
mencement to  its  termination.  They  broke  that  con- 
tract, and  it  was  a  tort  on  their  part  to  remove  him."  ^^ 

The  l']nglish  rul(\  as  estal)lished  by  Hurst  v.  Picture 
Tlicaires  is  that  a  theatre  ticket  is  a  license  coupled  with  a 

^'-Iluist    V.    Piclure    TJieaires,  tniftual  relation  existing  between 

Ltd.  (ICiiR.)  (1915), 8;}  L.  J.  (K.  B.)  himself  and  the  proprietor  of  the 

l.s;i7;  111  L.  T.  1)72;  30  T.  L.  U.  tlicatre,  and  might  maintain  an 

642;  oS  Sol.  Jo.  731).  action  on  the  eontract  a.s  well  as 

'« The  Iliirst  v.  Piclure  Theatres  for    a.ssault    if    he    was    forcibly 

Ltd.    decision    was    followed    in  ejected.     Dissenting  opinion   by 

Barn-well    v.     Nalional    Amuse-  McPhillips,  J.  A.,  to   the  effect 

ment   Cn.    (lOng.),    23    1).    L.    R.  that  the  i)ro|)rietor  of  the  theatre 

615;  31  W.  L.  K.  512.    A  patron  has  "complete  control  over  tliose 

once  having  entered  and  taken  who  are  iiermitted  to  attend"  the 

the  proper  .seat  wa-s  held  entitled  entertainment,  and  may  eject  pa- 

to  retain  his  seat  under  the  con-  tron  if  he  refuses  to  leave  theatre. 


298  THE    LAW   OF   MOTION   PICTURES 

grant — the  grant  to  see  the  spectacle,  and  the  hcense  to 
go  upon  the  premises  to  enjoy  the  grant;  and  for  that 
reason  it  may  not  be  revoked. 

The  American  rule  is,  by  the  great  weight  of  authority, 
that  the  purchase  of  the  ticket  confers  but  a  license  rev- 
ocable at  any  time,  and  that  this  right  is  hmited  only  in 
so  far  as  it  may  be  affected  by  the  various  Federal  and 
state  statutes. 

To  exclude  a  negro  from  a  theatre  is  to  violate  the  pro- 
visions of  the  statute.'^  And  it  was  even  held  that  where 
a  negro  was  not  excluded,  but  was  asked  to  exchange  the 
seat  purchased  by  him  for  a  seat  in  another  part  of  the 
house,  there  was  equally  a  violation  of  the  statute. ^^ 
It  was,  however,  held  in  another  state  that  where  the 
accommodations  afforded  by  the  part  set  aside  for  the 
use  of  the  negro  were  equal  to  that  afforded  to  the  other 

"  Joyner  v.  Moore  (1913),  152  elude  or  authorize  the  exclusion 

A.  D.  (N.  Y.)  266;   136  N.  Y.  of  plaintiff  and  when  he  on  the 

Supp.    578;     Cremore    v.    Huber  contrary  had  made  rules  to  the 

(1897),  18  A.   D.   (N.  Y.)    231;  contrary    and    customarily    per- 

45  N.   Y.  Supp.   947;  Joseph  v.  mittcd  negroes  to  enter. 

Bidwell  (1876),  28  La.  Ann.  382;  Hull  v.  GSth  St.  AiJiusement  Co. 

People  V.  King  ilSSS),  HON.  Y.  (1913),    144    N.    Y.    Supp.   318. 

418;   18  N.   E.  245;  Johnson  v.  Action  was  brought  under  Civil 

Sparrow  (Can.),  Q.  J.  K-  15  S.  C.  Rights  Law  because  of  refusal  to 

104;  Q.  J.  R.  8  Q.  B.  379.  sell  seat  for  orchestra  balcony  to 

Thomas    v.    Willia7)is    (1905),  negro.    Held  there  was  no  viola- 

48  Misc.  (X.  Y.)  615;  95  N.  Y.  tion   where    all    the   seats    were 

Sui)p.  592.    A  negross  was  denied  already  sold  at  the  time  j)laintiff 

admission  to  a  theatre  because  of  sought  to  purchase  tiu;  seat. 

her   color.     Held   that   the   pro-  '^  Bnylles  v.  Curry  (1889),  128 

prietor  was  not  liable  when  the  111.  2S7;  21  N.  1'].  595. 
defendant  did  not  personally  ex- 


MAHII.ITV    von    INMIUIES    SUSTAINED    HV    PATRON'S      29(» 

portions  of  the   llicatrc,   tliore  was  no   violation  of  tho 
statute. " 

Section  92. — Liability  for  injuries  sustained  by  patrons — 
In  general. 

While  tlie  proprietor  of  the  theatre  is  not  regarded  as 
an  insurer  of  the  safety  of  his  patrons  -°  he  is  recjuired  as 
a  general  nile  to  exercise  reasonable  care  and  jrrudence 
in  maintaining  his  premises  in  a  safe  condition.-'  In 
many  of  the  states  the  measure  of  this  duty  has  been  de- 
fined as  analogous  to  that  owed  by  the  owner  of  a  ten- 
ement house.  The  trend  of  the  decisions,  however,  has 
of  late  years  been  away  from  this  doctrine,  and  indications 
are  not  wanting  that  a  high  degree  of  care  is  imposed 
upon  the  proprietor,  in  keeping  with  the  peculiar  condi- 
tions that  exist  when  great  crowds  gather  for  the  purpose 
of  recreation  and  amusement. 

"  Wliere,  however,  a  person  invites  others  to  come  upon 
his  premises  to  view  an  exhibition  conducted  by  him  for 
hire,  he  warrants  the  reasonable  safety  of  the  place,  and 
by  reason  of  that  warranty  is  not  under  a  passive  duty 

^^Commonwealth      v.       George  his    patrons,   wits   not,   however, 

(10ir)),(U  Pa.  SuiKjr.  Ct.  412.  held  to  be  an  insurer  and  iKuind 

See    also:    Younger   v.  Jiuhih  to  anticipate  the  improbable. 

(1892),  111  Mo.  303;   19  S.  W.  =>' See:     Noack     v.      Wosdick 

1109;  IG  L.  R.  A.  558.  (1913),  182  111.  App.  425,  where  a 

^iicc:  ]y ells  \.  Minn.  Baseball  manager     of     a     restaurant     or 

(1913),  122  Minn.  327;  142  X.  W.  summer  garden  \v;us  held  bound  to 

706,  where  tlie  owner  of  a  base-  exercise  reasonable  care  to  keep 

ball  jwrk  while  required  to  use  the   premises    in    a    safe    eondi- 

care   and    precaution   to   protect  tion. 


300 


THE    LAW   OF   MOTION   PICTURES 


merely,  but  is  under  an  active  duty,  to  guard  against  all 
risks  which  might  reasonably  be  anticipated."  -- 

He  is  bound  to  inform  himself  of  the  condition  of  the 
premises  -^  and  to  ascertain  their  special  fitness  for  the 
accommodation  of  surging  crowds  and  other  unusual 
occurrences  that  the  owner  of  other  property  need  not 
generally  anticipate.  He  is  responsible  for  structural  de- 
fects -^  as  well  as  for  the  acts  of  omission  and  commission 


22  Redmond  v.  NaVl  Horse  Show 
Ass'n  <1912),  78  Misc.  (N.  Y). 
383;  183  N.  Y.  Supp.  364.  Plain- 
tiff as  a  patron  while  viewing  an 
exhibition  was  struck  by  a  heavy 
gate  which  fell  from  the  impact 
with  a  horse  which  had  become 
unmanageable.  Held  negligence 
on  the  part  of  plaintiff,  upon 
ground  that  defendant  should 
have  reasonably  foreseen  and 
guarded  against  such  an  accident. 

"  Lmk  V.  Peck  (1900),  132  A.  D. 
(N.  Y.)  426;  1 16  N.  Y.  Supp.  1051 ; 
aff'd  199  N.  Y.  546;  93  N.  E.  377. 
"The  owner  of  a  place  of  enter- 
tainment is  charged  with  an 
affirmative  positive  obligation  to 
know  that  the  preinises  are  safe 
for  public  use.  He  may  not  be 
exonerated  merely  because  he  had 
nf)  precise  knowledge  of  the  de- 
f(!Ctiv(!  condition  of  the  place  to 
which  he  invited  the  public." 

'^*  Schnizer  v.  Philips  (1905), 
108  A.  D.  (N.  Y.)  17;  95  N.  Y. 


Supp.  478.  "The  law  is  well 
settled  in  this  state  that  where  a 
party  in  possession  of  premises 
throws  the  same  open  to  the 
public  for  the  purpose  of  gain, 
he  impliedly  warrants  the  prem- 
ises reasonably  safe  for  the  pur- 
poses for  which  they  were  de- 
signed and  where  as  in  the  case 
at  bar,  the  plaintiff  is  injured  by 
the  fall  of  a  structure  which  she 
is  using  at  the  invitation  of  the 
person  in  charge  and  in  the  man- 
ner which  such  person  has  a  right 
to  expect  the  same  would  be  used, 
the  burden  of  explaining  the  ac- 
cident and  of  showing  freedom 
from  negligence  is  upon  the  de- 
fendanl. 

See  also:  Ahramovritz  v.  Tenzer 
(1911),  144  A.  D.  (N.  Y.)  170; 
128  N.  Y.  Supp.  951;  Fox  v. 
Buffalo  Park  (1S97),  21  A.  D. 
(N.  Y.)321;47N.  Y.  Supp.  788; 
aff'd  163  N.  Y.  559;  57  N.  E. 
1109. 


LIAIUIJTV    I' UK    INJURIES    SIJSTAINKU    HV    PATUONS      .'iOl 

OH  the  part  of  ageiitsi  and  sLTVaiits  wliilu  t'ligaged  in  the 
lju.siness  of  operating  the  tlieatre.-'  And  that  duty  ex- 
tends not  alone  to  those  who  pay  the  i)rice  of  admission 
to  his  premises,  but  also  to  all  others  upon  the  same  by 
his  invitation.-'' 

This  liability  on  the  part  of  the  owner  of  the  building 
is  not  evaded  by  a  lease  of  the  structure,  for  even  here 
the  courts  have  gone  so  far  as  to  read  into  the  lease  an 


^''Oakland  v.  Bingham  (1892), 
4  Ind.  App.  545;  31  N.  E.  383; 
Dickson  V.  Waldron  (1893),  135 
Ind.  507;  34  X.  K.  .506;  35  N.  E.  1 ; 
Fowler  v.  Holmes  (1889),  3  N.  Y. 
Supp.  816. 

Kcssler  v.  Dcutsch  (1908),  44 
Mi.sc.  (N.  Y.)  209;  88  N.  Y.  Supp. 
846.  The  master  is  responsible 
for  an  act  of  the  servant  done 
within  the  general  scope  of  the 
employment  while  enp;afj;ed  in  the 
master's  business  and  to  further 
it,  whether  the  act  be  done  negli- 
gently, wanlonly  or  willfully.  The 
burden, liowever,  is  on  the  plaintiff 
to  establish  that  the  servant 
acted  within  the  scope  of  his 
authority. 

See  in  this  connection:  Deyo 
V.  Kingston  Consolidated  R.  R.  Co. 
(1904),  94  A.  D.  (X.  Y.)  .578;  88 
N.  Y.  Supp.  487.  Plaint ilT  was 
injurefl  throu{?h  neglip'nce  of 
employes  of  a  fireworks  manu- 
facturer giving  e.\liibition  in  de- 


fendant's amu.sement  park.  De- 
fendant not  held  liable  since 
exhibition  was  done  entirely  by 
manufacturer's  employes  and 
defendant  had  no  control  nor 
a,ssumed  to  exercise  any  control 
over  them.  See  also  Crowley  v. 
Rochester  Fire  Works  (1906),  183 
N.  Y.  353;  76  X.  E.  470. 

See  also  Section  102. 

"  Owens  V.  Assoc.  Realties 
(1911),  81  X.  J.  L.  586;  80  Atl. 
325.  Plaintiff,  a  minor,  was  per- 
mitted to  enter  defendant's  park 
by  defendant's  employes,  with- 
out paying  an  admission  fee,  in 
exchange  for  which  plaintiff 
rendered  certain  services.  Held 
that  plaintilT  was  there  at  de- 
fendant's invitation  and  that 
defendant  was  thereby  under  an 
obligation  to  exercise  care  for  his 
safety. 

See  also  Turgeon  v.  ConrwcticiU 
Co.  (1911),  84  Conn.  538;  SO  Atl. 
714. 


302 


THE    LAW   OF   MOTION   PICTURES 


implied  covenant  by  the  lessor  that  the  premises  are  fit 
and  safe  for  the  pm-poses  for  which  they  are  intended  to 
be  used.-^ 


"Fox  V.  Buffalo  Park  (1897), 
21  A.  D.  (N.  Y.)  321;  47  N.  Y. 
Supp.  788;  aff'd  163  N.  Y.  559; 
57  N.  E.  1109.  "While  it  is  un- 
doubtedly true  in  ordinary  cases 
in  the  leasing  of  buildings  that 
there  is  no  imphed  warranty  on 
the  part  of  the  lessor  that  the 
buildings  are  fit  and  safe  for  the 
purposes  for  which  they  are 
leased,  the  rule  is  different  in 
regard  to  buildings  and  structures 
in  which  public  exhibitions  and 
entertainments  are  designed  to  be 
given  and  for  admissions  to  which 
the  lessors  directly  or  indirectly 
receive  compensation.  In  such 
cases  the  lessors  or  owners  of  the 
buildings  or  structures  hold  out 
to  the  public  that  the  structures 
are  reasonably  safe  for  the  pur- 
poses for  which  they  arc  let  or 
used,  and  impliedly  undertake 
that  due  care  has  been  exercised 
in  the  erection  of  the  buildings. 
Francis  v.  Cockrcll  (I'-iig.)  (1870), 
L.  R.  [5  Q.  B.]  501;  Swords  v. 
Edgar  (1874),  59  N.  Y.  28; 
Camp  v.  Wood  (1879),  76  N.  Y. 
92;  Beck  v.  Carter  (1877) ,  68  N.  Y. 
283;  Crotc  v.  C.  etc.  II.  It  (Eng.) 
(1848),  2  K.xch.  251;  ('nmphell  v. 
Portland   Sugar    Co.    (1873),    62 


Me,  552;  Wendell  v.  Baxter 
(1859),  12  Gray  (Mass.)  494." 

Lusk  v.  Peck  (1909),  132  A.  D. 
(N.  Y.)  426;  116  N.  Y.  Supp. 
1051;  afif'd  199  N.  Y.  546;  93 
N.  E.  377.  A  lessor  who  rents 
baseball  grounds  containing  a 
grand  stand  which  was  in  a  de- 
caying condition  at  the  time  of  the 
letting  is  liable  for  injuries  sus- 
tained by  a  patron. 

Where  the  premises  are  in  a 
proper  condition  at  the  time  he 
originally  rents  them  but  be- 
come defective  during  the  term 
of  the  lease  and  where  at  the 
expiration  of  the  lease  he  relets 
the  premises  to  another  party 
without  repairing  the  premises, 
the  lessor  is  liable  to  a  patron 
during  the  period  of  the  second 
lease  for  an  injury  sustained  by 
reason  of  such  defective  condition. 

Barrett  v.  L.  0.  B.  Impr.  Co. 
(1903),  174  N.  Y.  310;  66  N.  E. 
968;  61  L.  R.  A.  829.  Where  the 
lessor  let  a  structure  for  public 
use  which  was  structurally  de- 
fective or  did  not  afford  ade- 
quate protection  to  persons  using 
it  he  was  held  liable. 

See  also:  Edwards  v.  New  York 
(1885),  98  N.  Y.  245. 


FALLING    OVER    UALCONV 


303 


But  in  any  event,  whether  l>y  an  iinpHed  covenant 
or  an  express  covenant  by  the  lessor,  there  must  be 
notice,  actual  or  constructive  on  his  part,  ljef<jre  liability 
can  attach.-"^ 


Section  93. — Falling  over  balcony. 

A  fre(iuent  cause  of  accidents  is  the  giving  way  of  the 
railing  of  a  balcony  thereby  precipitating  a  spectator  into 
the  auditorium  below.  It  then  becomes  a  question  of 
fact  to  determine  whether  the  rail  was  insecurely  fastened. 
The  proprietor's  hability  has  been  rigidly  enforced  in 
Canada,  where  even  the  employment  by  him  of  an  expert 
arcliitect  did  not  prevent  the  plaintiff's  recovery.^ 

In  this  country,  recovery  for  such  an  accident  is  difficult, 
as  it  is  not  an  easy  matter  to  prove  the  faulty  or  insecure 
construction  of  the  railing.     In  one  case,  the  lessee  was 


^»  Lowell  V.  SiHuiUliiKj  (1849), 
58  Muss.  277.  A  lessor  of  a  the- 
atre who  coveimnts  to  make 
reasonable  repairs  on  the  leased 
premises  is  not  liable  to  his  le.ssoe 
or  patrons  t)f  the  theatre  for 
a  breach  of  this  covenant  unless 
he  had  knowledge,  actual  or 
constmctive,  of  the  defects  com- 
plained of. 

Sec  also:  Cli/nn  v.  Lyceum 
Theatre  Co.  (l!)i;J),  87  Conn.  237; 
87  Atl.  7i»6.  Contra:  Clyne  v. 
Helmcs  (1898),  Gl  N.  J.  L.  358; 
39  Atl.  767. 

-» Stewart  v.  Cobalt  Curling 
(Can.)  (1909),  19  Out.  I..  R.  007; 


14  Out.  W.  Rep.  179;  afT'd  14 
Ont.  \V.  Rep.  1003.  Plaintiff, 
in  leaning  against  a  railing  of  a 
balcony  where  he  was  seated, 
was  precipitated  to  the  floor  be- 
l(jw  because  of  the  giving  way 
of  the  railing.  //(•/(/  that  defend- 
ant was  liable  notwithstanding 
the  fact  that  he  had  employed  a 
comix'tent  architect  who  super- 
vised the  erection  of  the  rink. 
The  court  quotctl  with  approval 
Francis  v.  Cockrell  (Kng.)  (1870), 
L.  R.  5  Q.  B.  501. 

See  also:  Stcrenson  v.  Glasgow 
Co,-p.  (Scotch)  (1908),  Sc.  Ct. 
Sess.  1034. 


304 


THE    LAW    OF  MOTION   PICTURES 


held  not  liable  because  he  had  a  right  to  assume  that 
the  rail  was  properly  constructed.^"  In  another  case, 
the  lessor  was  held  blameless  as  the  lessee  had  weakened 
the  structure.^^  In  a  third  case  the  proprietor  was  per- 
mitted to  maintain  a  balcony  at  an  angle  of  fifty-fiye  de- 
grees without  a  second  guard  rail  in  front  of  the  aisles. ^^ 
At  best  it  is  a  question  of  fact  for  the  jury.^^ 


30  Greene  v.  SeattU  A.  C.  (1910), 
60  Wash.  300;  111  Pac.  157. 
Defendant  leased  an  armory  for 
one  night  only  for  a  sporting  ex- 
hibition, mostly  of  foot  races. 
Plaintiff  was  on  the  balcony. 
During  the  races  the  crowd 
surged  forward  and  caused  the 
railing  to  break,  injuring  plaintiff. 
It  was  not  claimed  that  the  bal- 
cony was  overcrowded,  but  that 
the  posts  that  held  the  raiUng 
were  insecure. 

Hel/l  that  defendant  was  not 
bound  to  have  the  balcony  in- 
spected by  experts,  but  had  a 
right  to  assume  that  the  building 
was  structurally  sound. 

See:  Edwards  v.  N.  Y.  &  //.  R. 
R.  (1885),  98  N.  Y.  245. 

^^Bard  v.  New  York  (1882), 
10  Daly  (N.  Y.),  520.  Where 
th(!  lassee  of  a  hall  had  changed 
the  balcony  anrl  put  in  l)oxos  and 
had  so  weakened  the  structure 
that  it  fell  and  injured  plaintiff, 
the  landlord  was  liold  not  liable, 
the  lassee  being  at  fault  alone. 


'^'^  Dunning  v.  Jacobs  (1895), 
15  Misc.  (N.  Y.)  85;  36  N.  Y. 
Supp.  453.  Plaintiff,  in  changing 
his  seat  in  the  gallery  of  the 
theatre  slipped,  fell  over  several 
rows  of  seats,  over  the  guard  rail 
and  was  precipitated  into  the 
orchestra.  Held  that  the  accident 
was  not  caused  by  defendant's 
negligence,  that  it  was  not  neg- 
ligent for  theatre  manager  not 
to  provide  a  second  guard  rail 
or  to  maintain  the  gallery  at 
an  angle  of  55  degrees. 

See  also:  Camp  v.  Wood  (1879), 
76  N.  Y.  92. 

^^Schofield  v.  Wood  (1898), 
170  Mass.  415;  49  N.  E.  636. 
Plaintiffs,  while  seated  in  the 
gallery  of  defendant's  hall,  leaned 
on  the  rail,  which  gave  way  and 
caused  their  injury.  There  was 
some  evidence  to  show  that  the 
rail  was  im])ro]M>rly  constructed 
and  insecurely  fastened.  Held, 
a  question  for  the  jin y. 

"A  person  erecting  and  using 
a  hall  for  such  exhibitions  must 


SEATS    AND    FLOORS  305 

The  American  rule  is  extremely  unfair  io  tlie  public 
It  would  l)e  more  in  k('ei)ing  with  justice  if  tlie  j)r()i>ri('t()r 
were  held  strictly  to  account  for  the  giving  way  of  the 
balcony  rail,  regardless  of  whether  he  knew  anything 
about  its  construction,  or  had  received  notice  of  any  de- 
fects. 

There  are  some  elements  of  responsibihty  resting  upon 
the  theatre  proprietor  which,  because  of  the  peculiar 
arrangement  of  the  building  and  the  methods  of  its  use, 
impose  a  greater  duty  upon  him  than  the  x\jnerican  juris- 
diction exacts. 

It  seems  hard  to  understand  why  a  common  carrier, 
which  is  bound  to  accept  everyone  presenting  himself  as 
a  passenger,  is  charged  with  the  highest  degree  of  care, 
while  tlie  proprietor  of  a  theatre,  more  or  less  free  to  fill 
his  house,  may  expose  gi'eat  numbers  of  the  public  to 
unusual  dangers  and  be  hable  for  ordinaiy  care  only. 

If  this  rule  were  modified,  it  would  do  more  to  insure 
the  safety  of  an  audience  than  is  accomplished  by  all  the 
numerous  statutes  and  ordinances  that  are  i^assed  every 
year.  Weiner  v.  Scherer  '"  comes  nearer  to  expressing 
this  doctrine  than  any  of  the  other  reported  American  cases. 

Section  94. — Seats  and  floors. 

While  the  duty  of  the  theatre  proprietor  has  been  de- 
use  roiisonahle  care  in  the  con-  '*  Wciiur  v.  Schcrcr  (1900), 
striK'tioii,  inainteiiiuicc  and  man-  (it  Misc.  (X.  V.)  82;  117  N.  Y. 
uRcincnt  of  it,  having  regard  to  Sni)|).  lOOS.  Here  the  rail  gave 
tlie  character  of  the  exhibitions  way  Ijccause  of  the  surging  of 
given  and  the  customary  con-  the  crowd,  causing  several  i)eople 
duct  of  spectators  wiio  witness  to  fall  uiv)n  tlie  plaint  it!  who  Wivs 
them.  .  .  ."                                           seated  in  the  orchestra. 


306 


THE    LAW   OF   MOTION    PICTURES 


fined  as  ordinary  care,  even  where  the  seats  of  a  graiid 
stand  had  collapsed  it  was  held  nevertheless  that  he  was 
liable  for  defects  in  the  structure  of  the  building  which 
resulted  in  the  giving  way  of  the  flooring. ^-^ 

The  safer  practice  on  the  part  of  the  proprietor  is  to 
make  a  thorough  inspection  of  his  building  every  day, 
paying  particular  attention  to  the  seats.  An  inspection 
of  this  kind  has  been  judicially  defined  as  a  full  com- 
pHance  with  the  proprietor's  duty  to  his  patrons. ^^ 

Section  95. — Tripping    in    darkened    theatre — aisles — 
steps — exits. 
The  case  of  Branch  v.  Klatt  ^^  has  laid  down  the  best 


"  Texas  State  v.  Britton  (1902), 
lis  Fed.  (C.  C.  A.)  713.  Plaiu- 
tilf  wus  injured  by  the  falling  of 
scats  in  a  grand  stand.  Held 
that  the  corporation  operating 
the  State  Fair  and  advertising  the 
side-show  was  liable  in  damages. 

See  also:  Van  Antwerp  v. 
Linton  (1895),  89  Hun  (N.  Y.), 
417;  35  N.  Y.  Supp.  318;  aff'd 
157  N.  Y.  716;  53  N.  E.  1133; 
Uuneke  v.  Went  Brighton  Am.  Co. 
(1903),  80  A.  D.  (N.  Y.)  2G8; 
80  N.  Y.  Supp.  201. 

Brown  v.  So.  Kennebec  (1S59), 
47  Maine,  275.  The  proprietor 
was  held  liable  to  a  patron  for 
injuries  caused  because  of  negli- 
gence in  the  constructif)n  of  a 
building  resulting  in  the  fall  or 
giving  way  of  the  flooring. 


See  also:  Latham  v.  Roach 
(1874),  72  111.  179. 

^^  Glynn  v.  Lyceum  Theatre 
Co.  (1913),  87  Conn.  237;  87  Atl. 
796.  "The  lessee  did  not  insure 
tlie  absolute  safety  of  the  theatre 
seats;  it,  by  its  invitation  to  its 
guests,  assumed  the  duty  toward 
them  of  exercising  reasonable 
care  to  sec  that  the  seats  were  in  a 
reasonably  safe  conditioii  for  its 
guests,  Turgeon  v.  Connecticut 
Co.  (1911),  84  Conn.  538,  541; 
80  Atl.  714.  It  performed  this 
duty  by  having  its  servant  ex- 
amine i\w  .seats  each  day  and 
report  their  (n)ndition,  and  there- 
after repairing  the  defective  ones. " 

"Branch  v.  Klatt  (1911), 
105  Mich.  060;  131  N.  VV.  107; 
after  retrial   173  Mich.  31;   138 


TlUl'l'lNG    I.N    DARKENED    TlIEATItE,    ETC. 


31)7 


rule  of  all  tho  reported  decisions  with  respect  to  the  liabil- 
ity of  the  tlieatre  i)ro])netor  when  his  theatre  is  darkened 
during  a  performance.  It  holds  that  the  patron,  in  such 
case,  has  the  rif^ht  to  rely  on  the  premises  Ix'ing  in  safe 
ccjndition,  and  that  his  duty  is  lighter  than  that  of  a  pede.s- 
trian.  That  is  an  eminently  sensible  doctrine,  and  should 
be  followed  in  all  the  states.  Unfortunately,  it  is  not. 
The  courts  generally  adhere  to  the  old  rule  of  ordinary  care 
and  contributory   negligence, ^'^  something  which  in  the 


N.  W.  2&3.  Phiiiitiff  wius  hurt 
by  descendint;  tlie  steps  situated 
at  the  exit  of  a  theatre  after  dark. 
The  (juestiou  was  whether  by 
using  this  exit  jjlaiiitiff  was  guilty 
of  contributory  iic>:;lip;oiu'e. 

"One  woukl  have  the  right  to 
presume  that  the  defendant  had 
discharged  his  duty  of  having  the 
premises  in  a  reasonably  safe 
condition,  as  to  hghts  and  con- 
struction; and  the  onhnary  |x*rson 
woukl  naturally  suppose  that  it 
would  1)(^  safe  to  pass  ak)ng  a 
passageway  provided  for  his  exit, 
with  reasonal)le  assurance  of  its 
being  in  safe  condition.  The  very 
fact  of  the  premises  being  main- 
tained in  a  darkened  condition 
niiglit  give  him  addcni  assurance 
of  it,s  being  reasonably  safe.  .  .  . 
The  duty  of  a  ix'rson  in  a  the- 
atre, wliere  he  has  been  invited,  is 
hghtor  than  that  resting  ui)<)n  one 
passing  ak)iig  the  pubhc  streets." 


See  also:  Andre  \.  Merleiui  el  al. 
(1!)10),  96  Atk  (N.  J.)  893.  "It 
is  next  argued  that  the  plaintiff 
was  negligent  as  a  matter  of  law 
in  attempting  to  leave  the  theatre 
before  the  show  wii.-<  Hnlsheil.  Not 
so.  The  defendants  commonly 
exhibited  the  same  pictures  over 
and  over  again  on  the  same  even- 
ing, and  it  was  quite  usual  for 
patrons  to  depart  at  any  time." 

"  llolknback  v.  Clcmmcr  (1912), 
m  \Va.sh.  565;  119  Pac.  1114. 
Plaint ilT  had  attended  a  moving- 
pictun;  show  and  on  leaving  the 
theatre  was  directed  by  the  usher 
to  take  a  particular  exit.  There 
was  a  step  down  of  seven  inches 
at  this  exit.  \ot  noticing  this 
step  she  w;is  pn'cipitated  to  the 
ground  and  injured.  Held  that 
defendant  was  not  liable;  that 
jilaintiff  should  have  usetl  her 
sense*  of  sight  and  looke<l  wliere 
she  was  stepping. 


308 


THE    LAW   OF   MOTION    PICTURES 


light  of  the  facts  that  usually  obtain,  seems  unnecessarily 
harsh  and  unjust. 

It  has  been  held  that  the  theatre  proprietor  is  under  a 


New  Theatre  v.  Hartlove  (1914), 
123  Md.  78;  90  Atl.  990.  The 
appellee  was  injured  by  reason  of 
a  fall  while  seeking  a  seat  in  a 
darkened  theatre. 

Ordinary  care  and  diligence 
was  held  to  be  the  measure  of 
defendant's  duty,  and  a  verdict 
in  favor  of  plaintiff  was  upheld 
in  view  of  all  the  evidence. 

Pattison  v.  Livingston  Am.  Co. 
(1913),  156  A.  D.  (N.  Y.)  368; 
141  N.  Y.  Supp.  588.  Plaintiff 
entered  the  balcony  while  the 
theatre  was  dark.  Her  seats 
were  in  the  fifth  row  from  the 
front.  Without  waiting  for  any 
assistance,  she  groped  her  way 
along,  and  was  injured. 

Held,  that  she  was  guilty  of 
contributory  negligence  as  a  mat- 
ter of  law. 

Bulclwr  V.  Ifydc  (1897),  152 
N.  Y.  142;  46  N.  E.  305.  It  was 
held  error  for  the  trial  court 
to  refuse  to  charge  that  if  jilaintiff 
fell  from  the  fourth  or  fifth  stoj) 
tli(!  verdict  must  be  for  the  de- 
fondants  where  there  was  no 
proof  of  any  defect  in  the  stair- 
way of  a  theatre  except  in  the 
condition  of  a  strip  of  rubber  on 
the  sixth  step. 


Andre  v.  Mertens  et  al.  (1916), 
96  Atl.  (N.  J.)  893.  Plaintiff 
in  leaving  defendant's  motion 
picture  theatre,  descended  a  stair- 
way leading  from  the  balcony  to 
the  entrance  floor.  Because  of 
the  dark  condition  of  the  stair- 
way, she  lost  her  footing  in  a 
turn  of  the  stairs  and  was  pre- 
cipitated to  the  platform  below. 
In  affirming  a  judgment  in  plain- 
tiff's favor  the  court  said: 

"The  proprietor  of  a  theatre 
conducted  for  reward  or  profit, 
to  which  the  general  public  are 
invited  to  attend  performances 
must  use  ordinarj''  care  to  make 
the  premises  as  reasonably  safe 
as  is  consistent  with  the  practical 
operation  of  the  theatre,  and  if  ho 
fails  in  this  duty,  he  may  be 
held  liable  for  personal  injuries 
occasioned  thereby;  and  this  rule 
applies  to  the  proprietor  of  a 
moving   picture   show." 

See  also:  Owens  v.  Associated 
Hraltics  (1911),  SI  N.  J.  Law, 
FySC);  SO  Atl.  ;V25;  Branch  v.  Klalt 
(1911),  165  Mich.  666;  131  N.  W. 
107;  same  case  after  retrial  173 
Mich.  31;  138  N.  W.  263;  Valen- 
lim-  Co.  v.  Shmn  (1912),  53  Ind. 
App.  69;  101  N.  E.  102. 


THFI'I'INd    I.N    DARKENED    TIIKATHE,    KT( 


:i()0 


duty  to  mako  propor  inspootions  of  his  proinisos,  and  it  is 
for  tho  jury  to  say  wlicthcr  such  insj)ec'tioiis  were  made  a 
sufficient  length  of  time  before  to  have  enabled  him  to 
repair  tlic  premises/^'-' 

The  violation  of  a  statute  or  ordinance  by  the  pro- 
prietor renders  him  prima  facie  liable;  and  a  failure  to 
build  inchnes  as  required  was  held  to  be  the  proximate 
cause  of  the  injury.^" 

and  fell.  Tiic  light  provided  was 
not  suffieieiit  for  her  to  distiiiKulsh 
theunovenstcps,  and  she  was  (juite 
unfainihar  with  tlieir  coiichtion. 
Held,  that  there  was  no  such  thing 
here  as  assumption  of  risk. 

"One  who  conducts  a  theatre 
for  reward  or  j)rofit,  to  which  the 
general  public  arc  invited  to 
attend  performances,  must  use 
ordinary  and  reasonable  care  to 
make  the  premises  as  reasonablj' 
safe  as  is  consistent  with  the 
practical  operation  of  the  same." 

Nephlcr  v.  Woodward  (1906), 
200  Mo.  175);  OS  S.  W.  4.S.S.  Plain- 
tilT,  a  patron  of  defendants' 
theatre  while  pa.'vsing  down  one 
of  the  aisles  to  her  .<eat  fell,  her 
foot  having  caught  in  a  hole  in  the 
cariK't.  Held,  that  jurj'  could 
find  that  defendants  faiknl  to  u.se 
the  j)ropcr  care  retiuircd  of  them 
to  protect  their  patrons,  and 
judgment  entered  on  verdict  of 
jur>'  was  aflimied. 

*'>Ewing  V.   rha<^c    (1011),  ;}7 


'•>  Dalton  V.  Hooper  (1014),  108 
S.  \V.  (Tex.)  84.  I*laintifT, 
wliile  descending  a  stairway  in  a 
tlieatre,  caught  her  foot  on  a 
projecting  metal  strip,  and  sus- 
tained injuries.  Held,  that  while 
defendants  were  not  insurers, 
yet  they  owed  the  dutj'  of  exer- 
cising reasonaljle  care. 

"  It  is  their  duty  to  make  proper 
inspections  to  .see  that  the  place 
is  in  proper  condition  to  avoid 
injury.  In  this  case  there  was 
proof  to  show  inspection,  and 
whether  the  projecting  metal 
strip  that  caused  apix-llee  to  fall 
was  known  to  be  in  that  condition, 
or  should  have  been  known  to 
appellants  by  rea.sonablc  care, 
a  sufficient  length  of  time  before 
tlie  accident  to  have  been  re- 
paired by  apiK^llants,  was  a  ques- 
tion for  the  jury's  detenninatii)n." 

Va'entine  Co.  v.  Sloan,  53  Ind. 
App.  00,  101  N.  E.  102.  Plain- 
tilT,  while  attempting  to  descend 
an  aisle  in   the  theatre,  tripjx^d 


310 


THE    LAW    OF   MOTION    PICTURES 


In  Micheltree  v.  Stair  "^^  the  proprietor  was  sought  to 
be  held  hable  by  reason  of  an  injury  suffered  by  an  actress 
who  used  an  iron  stairway  to  reach  her  dressing-room. 
It  was  held  that  she  assumed  the  risk.  We  cannot  rec- 
oncile this  decision  with  the  cases  in  the  same  state  which 
hold  that  a  tenant  who  has  no  method  of  egress  from  or  in- 
gress to  his  apartment  other  than  the  stairway  on  which 
he  is  injured,  is  not,  by  reason  of  his  using  such  stairway, 
guilty  of  contributory  negligence.  We  do  not  believe 
that  that  decision  will  be  followed. 

On  the  other  hand,  a  patron  of  a  theatre  has  no  right 
to  leave  by  a  rear  exit  which  is  not  intended  for  general 
use,  and  where  he  does  so,  and  is  hurt,  he  cannot  recover."*- 


App.  Cas.  (D.  C.)  53.  The  de- 
fendant violated  a  statute  in 
failing  to  build  proper  inclines 
leading  to  exits,  in  his  theatre. 
The  court  held  that  one  who 
failed  to  comply  with  a  statute 
was  guilty  of  negligence  as  a 
matter  of  law  where  the  person 
injured  was  free  from  contribu- 
tory negligence  and  the  violation 
of  the  statute  was  the  proximate 
cause  of  the  injurj'. 

*  •  M  icIieUree  v .  Stair  ( 1 909) , 
1.3.5  A.  1).  (N.  Y.)  210;  120  N.  Y. 
Supp.  fAO.  PluintifT,  an  actress, 
slipped,  while  using  stairway 
loading  to  her  dressing  room, 
because  of  the  slippery  condition 
of  the  iron  trends  on  the  stairs. 
Held  that  as  she  had  used  the 
stairway  a  number  of  times  be- 


fore, she  must  have  known  the 
condition  of  the  stairway  and 
assumed  the  risk.  Held  further 
that  the  appellants  not  being 
plaintiff's  employers,  were  only 
bound  to  use  reasonable  care  in 
keeping  the  building,  including 
the  stairway  in  repair,  but  under 
no  obligation  to  furnish  her  with 
a  reasonably  safe  place  to  work. 

••2  Hendershott  v.  Modern  Wood- 
men (1911),  66  Wash.  155;  119 
Pac.  2.  Plaintiff  while  leaving  a 
hall  by  the  back  stairway  was 
injured.  Held,  no  liability,  as 
there  was  no  invitation  to  enter 
or  leave  by  that  way. 

Johnson  V.  Wilcox  (1890),  1.35 
Pa.  St.  217;  19  All.  939.  Plaintiff 
had  attended  :i  dance-hall.  In- 
stead of  leaving  by  the  lighted 


AltTKLKS    DROPPING 


:?n 


Nor  is  the  owner  liable  because  plaintiff  had  tripped  over 
a  mat  in  the  foyer  near  the  ticket  ofhce." 

Section  96. — Articles  dropping. 

Wlien  a  j)atron  is  injured  by  the  fall  of  a  part  of  the 
ceiling  or  chandelier,  the  rule  of  res  ij)sa  locjuitur  applies, 
and  the  burden  is  on  the  proprietor  to  show  that  he  was 
free  from  negligence.  In  such  a  case  proof  that  the 
premises  were  regularly  and  carefully  inspected  will  not 
relieve  him  from  liability.^'  To  hold  otherwise  would  be 
to  place  a  premium  upon  carelessness  on  the  part  of 
theatre  proprietors. 

It  has  been  held  in  Flanagan  v.  Goldberg  ^^  that  a  charge 


entrance  he  stepped  out  upon  a 
tiark  platform.  Held  that  de- 
fendant was  not  liable  for  the 
injury  resulting. 

"'  Ilulmes  V.  United  Theatres 
(191.5),  152  N.  W.  (Mich.)  987. 

See  generally:  Norton  v.  lludner 
(1913),  213  Mass.  257;  100  N.  E. 
.546;  De  Velin  v.  Simn^son  (1909), 
72  Atl.  (R.  I.)  388;  Dunjer  v. 
//(7/.S  Bros.  (1903),  79  A.  D.  (N. 
Y.)  45;  79  N.  Y.  Supp.  7S.5; 
Reeves  v.  Fourteenth  St.  Theatre 
(1906),  110  A.  D.  (X.  Y.)  73.5; 
96  X.  Y.  Supp.  448;  DiuUey  v. 
Afjraham  (1907),  122  A.  D.  (X.  Y.) 
480;  107  X.  Y.  Supp.  97;  Meyer  v. 
Grand  Rapids  Chair  Co.  (1914), 
180  Mich.  604,  147  X.  W.  488. 

**  Goldstein     v.     Levy     (1911), 


74  Misc.  (X.  Y.)  463;  132  X.  Y. 
Supp.  373. 

But  see:  Sheets  v.  Suiibry  (1912), 
237  Pa.  St.  153;  85  Atl.  92.  Plain- 
tiff, while  attending  an  amu.^^e- 
iiiciit  park,  stopjx'd  under  a  tree. 
A  linilj  or  branch  fell  upon  him, 
injuring  him,  and  the  testimony 
showed  that  it  apix-ared  to  be  de- 
cayed, although  there  was  some 
dispute  as  to  that.  It  appeared 
that  two  days  prior  thereto  an 
insjjection  of  the  park  had  been 
made.  Held  that  defendant  was 
not  liable  and  judguiciit  in  plain- 
tiff's favor  reversed. 

*' Flanagan  v.  Goldberg  (1910), 
137  A.  D.  (X.  Y.)  92;  122  X.  Y. 
Supp.  205.  Plaintiff  was  in- 
jured  by   a    board  falling  in  a 


312 


THE    LAW   OF   MOTION   PICTURES 


to  this  effect  was  error,  but  the  special  facts  in  that  case 
must  be  considered,  as  there  was  indication  that  the 
board  had  been  placed  by  strangers.  The  better  rule 
would  be  to  give  the  patron  the  benefit  of  every  hberal 
construction,  for  he  enters  at  the  invitation  of  the  owner, 
and  relies  upon  the  latter' s  prudence  and  carefulness  in 
the  maintenance  of  the  premises/^ 

Special  circumstances  might  arise  when  the  proprietor 
would  not  be  held  liable,  as  in  case  of  a  sudden  panic  ''^ 
on  where  the  article  dropped  had  not  been  fastened  to 
the  premises  and  might  have  been  so  dropped  by  a 
stranger.  ■^^ 


motion  picture  theatre.  The 
court  held  that  it  was  error  to 
charge  that  the  burden  was  on 
defendant  to  show  freedom  from 
neghgence  rather  than  on  plain- 
tiff to  show  neghgence. 

*^  Currier  v.  Henderson  (1895), 
85  Hun  (N.  Y.),  300;  32  N.  Y. 
Supp.  953.  Defendant  was  held 
liable  for  injuries  received  by 
plaintiff  by  the  fall  of  a  batten 
from  the  flies  in  defendant's 
theatre. 

Schnizer  v.  Phillips  (1905), 
lOS  A.  D.  (N.  Y.)  17;  95  N.  Y. 
Su[)p.  478;  Fox  v.  Buffalo  Park 
(1897),  21  A.  I).  (X.  Y.)  321; 
47  N.  Y.  Supp.  788;  aff'd  136 
N.  Y.  559;  57  N.  K.  1109;  Abrom- 
owitzv.  Tcnzcr  (1911),  144  A.  D. 
(X.  Y.)  170;  128  X.  Y.  Supp.  951; 
Lmk  V.  Peck  (1909),  132  A.  1). 


(N.  Y.)  426;  116  N.  Y.  Supp. 
1051;  aff'd  199  N.  Y.  546;  93 
N.  E.  377. 

^T  King  v.  Ringling  (1910),  145 
Mo.  App.  285;  130  S.  W.  482. 
Plaintiff  was  injured  by  falling 
of  a  board  at  defendant's  circus, 
during  a  panic  caused  by  a  wind- 
storm. Held  defendant  not  liable 
as  no  evidence  was  brought  out 
showing  that  defendant  was  guilty 
of  a  breach  of  any  duty  owing 
to  plaintiff. 

«  Williaym  v.  Mineral  C.  P.  A. 
(1905),  128  Iowa,  32;  102  N.  W. 
783;  1  L.  H.  A.  (X.  S.)  427. 
While  seated  below  a  grand  stand 
in  a  park  where  races  were  being 
held,  a  bottle  was  dropped  upon 
plaintiff.  Held  that  as  reasonaljle 
care  was  the  measure  of  duty, 
the  charge  was  correct  and  the 


^VIM)    ANIMAI>; 


313 


Section  97.     Wild  animals. 

UiidcT  one  line  of  cases  the  rule  of  liability  on  the  jjurt 
of  an  owner  of  wild  animals  was  a  veiy  stringent  one,  so 
that  where  the  animal  escaped  and  injured  another,  the 
owner  at  once  and  in  any  event  became  lia))le.'^  Tlie 
owner  was  legally  i)resumed  negligent  "'"  and  was  charged 
with  knowledge  of  the  propensities  of  such  animals  to  do 
injury.-''     He  was  bound  to  ''absolutely  prevent"   the 


jury's  vordi<'t  for  tlie  dofendaiit 
would  not  l)(!  disturbed.  There 
was  no  evidence  to  show  how  the 
bottle  had  been  dropped  or  by 
whom. 

Picscltd  V.  Miner  (1900),  30 
Misc.  (X.  Y.)  301 ;  63  N.  Y.  Supp. 
508.  "PlaintifT  moves  to  set 
aside  a  dismissal.  He  showed 
tliat  while  in  the  orchestra  of 
defendant's  theatre,  he  was  in- 
jured througli  tlie  fall  of  an  iron 
hook  from  above  the  stage.  The 
defendant  throuRh  a  witness  called 
by  the  jilaintiff,  sliowed  that  the 
hook  fell  while  in  use  by  the 
stage  carpenter;  there  was  no 
evidence  of  tlie  character  of  any 
defect  which  existed  prior  to  the 
accident,  or  that  the  tool  was 
UMsuited  to  tlie  work.  .  .  .  The 
dismis.sal  was  therefore  proper." 

«  lllale,  P.  C,  chap.33,  p.  430. 
The  doctrine  was  laid  clown  by 
Hale  that  when  the  animal  es- 
capes,   the    owner    is    at    once 


liable  irrespective  of  the  degree 
of  care  exercised  by  him  in  keejv 
ing  the  animal  confined. 

See:  Besozzi  v.  Harris  (Eng.) 
(1858),  1  Fost.  &  F.  92;  Wyalt  v. 
RosherviUe  Gardens  (Eng.)  (18SG), 
2  Times  L.  H.  282;  Manger  Bros. 
v.  Shipman  (1890),  30  Xeb.  3.'y2; 
46  N.  W.  527;  Shaw  v.  McCreary 
(Can.),  19  Ont.  Rep.  39. 

'-"Rogers  v.  Rogers  (1887),  4 
N.  Y.  St.  Rep.  373.  Xcgligence 
of  the  owner  is  the  legal  presumi>- 
tion.  While  a  man  might  by  a 
wanton  act,  provoke  an  attack 
"every  failure  to  use  care  is  not 
negligence  nor  does  the  rule  of 
contributor}'  negligence  in  the 
scn.se  in  which  that  term  is  ordi- 
narily applied,  govern  in  such 
ca.ses." 

''^Spring  v.  Edgar  (1878),  90 
U.  S.  645.  "Animals  ferae  natu- 
rae as  a  cla.ss  are  known  to  l>c 
miscliiin'ous;  :ind  the  rule  is  well 
settlinl  that  whoever  underUikea 


314 


THE    LAW   OF   MOTION   PICTURES 


injury  ^-  and  the  fact  that  plaintiff  was  a  trespasser  upon 
the  premises  whereon  the  animals  were  kept  did  not 
defeat  a  recovery.  ^^ 


to  keep  such  an  animal  in  places 
of  public  resort  is  or  may  be 
liable  for  the  injuries  inflicted 
by  it  on  a  party  who  is  not 
guilty  of  negligence  and  is  other- 
wise without  fault  ...  in  ac- 
tions for  injuries  by  such  beasts 
it  is  not  necessary  to  allege  that 
the  o\vner  knew  them  to  be  mis- 
chievous, for  he  is  presumed  to 
have  such  knowledge,  from  which 
it  follows  that  he  is  guilty  of 
negligence  in  permitting  the  same 
to  be  at  large." 

See  also:  Woodbridge  v.  Marks 
(1896),  5  A.  D.  (N.  Y.)  604; 
40  N.  Y.  Supp.  728;  Brooks  v. 
Taylor  (1887),  65  Mich.  208;  31 
N.  W.  8.37;  Fopplewell  v.  Pierce 
(Eng.)  (18.52),  10  Cush.  509; 
Snoiv  V.  McCracken  (1895),  107 
Mich.  49;  64  N.  W.  866;  Partlow 
V.  Ilaggerty  (1870),  35  Ind.  178; 
Williams  v.  Moray  (1881),  74 
Ind.  25. 

'■^Gooding  v.  Chutes  (1909), 
102  Pac.  (Cal.)  819;  23  L.  R.  A. 
(N.  S.)  1071.  Dofoiidant  was 
keeping  animals  for  exhibition 
at  a  place  called  "The  Chutes." 
Plaintiff  was  employed   to  look 


after  them,  and  in  particular 
a  camel  of  vicious  propensities. 

"  It  is  the  duty  of  one  who  owns 
or  keeps  domestic  animals  known 
to  be  vicious  to  guard  them  in 
such  a  manner  as  ^yill  absolutely 
prevent  the  occurrence  of  an 
injury  to  others  through  such 
vicious  acts  of  the  animals  as  they 
are  naturally  inclined  to  com- 
mit. .  .  .  This  language  is  used 
in  the  authority  cited  with  re- 
spect to  the  duty  of  an  owner  of 
wild  animals,  which  are  pre- 
sumed to  be  ferocious." 

Hays  V.  Miller  (1907),  43  So. 
(Ala.)  818.  The  owner  of  a  wolf 
was  hold  liable  for  injuries  in- 
flicted by  the  animal. 

"On  the  other  hand  the  owner 
of  wild  animals  ferae  naturae  is  as 
a  general  rule  liable  for  in- 
juries done  by  them.  It  is  not 
necessary  to  prove  that  the  owner 
had  knowledge  of  the  vicious 
nature  of  a  wild  animal  causing 
injury,  as  he  is  conclusively 
presumed  to  have  such  knowledge. 
Neither  is  it  necessary  to  show 
that  the  owner  was  negligent  in 
permitting  the  animal  to  be  at 


"Marble  v.  Ross  (1878),  124  Mass.  44. 


WIM)    ANIMAIi^ 


315 


"It  is  the  duty  of  thoso  who  koop  thorn  (wild  boasts) 
to  do  it  in  such  a  niannor  as  will  absolutely  i)revont  the 
occurrence  of  an  injury  to  others  through  such  vicious 
acts  of  the  aiiinials  as  they  are  naturally  inclined  to  com- 
mit, and  such  liability  exists  without  notice  of  the  jjre- 
vious  misconduct  of  such  animals.  In  other  words,  such 
notice  is  conclusively  presumed  from  the  nature  of  the 
animal."  •'* 

But  wild  animals  have  become  a  very  necessarj'  feature 
of  the  motion  picture  business  as  well  as  of  theatrical 
exhibitions  and  the  rule  of  absolute  liability  has  been 
recognized  as  harsh  and  unjustly  severe.  It  has  for  that 
reason  been  modified  to  the  extent  that  .some  negligence 
must  be  shown  on  the  i)art  of  the  owner  before  he  may 
be  held  liable. •'' 


large  for  lie  is  bound  to  keep  it 
secure  at  his  peril." 

See:  Par  fin  ns  v.  Manser  (1903), 
119  Iowa,  88:93  X.  W.  86. 

Aiulreir  v.  Kilgnur  (Can.),  19 
Manitoba,  545;  13  West.  L.  Rop. 
608.  Held  the  owner  absolutely 
liable  for  injuries  caused  by  his 
I^et  racoon. 

VreAenburg  v.  Behan  (1881), 
33  La.  Ann.  627.  Where  plain- 
tiff's intestate  wa.s  set  upon  by 
a  l)oar  and  mortally  attacked, 
his  estate  could  recover  of  the 
defendants,  members  of  a  club, 
which  had  kept  the  bear  upon  the 
adjoining  premises. 

See  also:  Sperknidii  v.  Krciij 
(1899),  79  Mo.  App.  370. 


Ildrrif!  V.  Carstens  Packing  Co. 
(1906),  86  Pac.  (Wa-sh.)  1125. 
Defendant,  the  owner  of  a  vicious 
steer,  held  liable  for  one  injurwl 
l)y  the  animal. 

See  also:  Midler  v.  McKeni^on 
(1878),  73  N.  Y.  195;  Hammond 
v.  Melton  (1891),  42  III.  App.  186; 
Ahlstran^l  v.  Bishop  (1899).  88 
III.  App.  424. 

''*  Parker  v.  Cuahman  (1912), 
195  Fed.  (C.  C.  A.)  715.  Plain- 
tiff attended  a  wild-animal  show, 
and  a  lion  reache<l  through  the 
bars  and  injuretl  her. 
^  >'^Molloy  V.  Starin  (1«K)8),  191 
N.  Y.  21;  8:1  N.  E.  588.  The 
owner  of  a  boat  wa«J  tran^jiorting 
several  trained  bears.     Plaintiff, 


316 


THE    LAW   OF   MOTION    PICTURES 


"Hence  the  gist  of  such  an  action  as  this  is  not  the 
keeping  of  the  dog  with  knowledge  of  his  dangerous  na- 
ture, but  rather  the  neghgent  failure  to  properly  restrain 
the  animal,  and  to  keep  liim  so  safely  that  he  may  not 
injure  anyone  who  is  lawfully  at  the  place."  ^^ 

Where  the  owner  is  free  from  all  negligence  and  the 
animal  escapes,  the  owner  is  not  liable. ^^    Nor  is  the  owner 


a  boy  of  nine  years,  came  upon 
the  cages  and  was  injured.  Held 
that  the  defendant  was  not 
brought  within  the  rule  making 
it  absolutely  liable  for  beasts 
ferae  naturae,  unless  negligence 
on  his  part  could  be  shown,  and 
that  as  no  negligence  was  here 
shown,  a  verdict  in  favor  of 
plaintiff  was  reversed. 

^  Hayes  v.  Smith  (1900),  62 
Ohio  St.  161;56N.  E.  879. 

See  also:  Thomas  v.  Bayson 
(1901),  21  Ohio  C.  C.  778;  Fake 
V.  Addicks  (1890),  45  Minn.  37; 
47  N.  W.  450;  Melsheimer  v. 
SnlUvan  (1891),  1  Colo.  App. 
22;  27  Pac.  17;  Meibiis  v.  Dodge 
(1875),  38  Wis.  300;  Worthen  v. 
Love  (1888),  GO  Vt.  285;  14  Atl. 
461;  Graham  v.  Payne  (1889), 
122Ind.  403;24N.  E.  216. 

'•''  (,'onnor  v.  The  Princess 
Theatre  (Can.),  10  I).  L.  R.  143; 
4  O.  VV.  N.  502;  27  Out.  L.  Rep. 
466;  49  C.  L.  .1.  US.  Phiintiff 
w;is  injured  l)y  a  trained  nK)nkoy 
wliich  performed  in  the  theatre 


of  defendants.  Held  that  de- 
fendants were  not  liable  as  they 
had  not  been  guilty  of  any  neg- 
ligence, the  monkey  having  been 
insecurely  fastened  by  a  stranger. 

See  also:  Du  Tremble  v.  Poulin 
(Can.),  42  Que,  S.  C.  121. 

De  Gray  v.  Murray  (1903), 
69  N.  J.  L.  458;  55  Atl.  237. 
Defendant  was  accustomed  to 
keeping  a  vicious  dog  locked  up 
for  the  night.  The  dog  managed 
to  chew  away  the  woodwork 
around  the  lock  of  his  house,  and 
escaped,  injuring  plaintiff  early 
the  following  morning.  Defend- 
ant held  not  liable. 

Scrib7ier  v.  Kelly  (1862),  38 
Barb.  (N.  Y.)  14.  Defendant 
owned  an  elephant.  Plaintiff's 
horse  became  frightened  thereat 
and  caused  the  injury.  Hrld  (hat 
while  the  defendant's  nogligciu-e 
was  presumed,  there  was  no  proof 
here  that  he  was  anything  but 
careful,  and  the  complaint  was 
dismissed. 


WILD    AM.M.\I>> 


317 


liahlo  when  the  i)laintilT  has  liimself  been  guilty  <;f  eun- 
tributory  negligence  or  has  provoked  the  animal.''*  And 
the  owner  has  been  held  harmless  where  the  plaintiff  was 
employed  to  look  after  the  animal,  for  in  that  ease  the 
latter  is  presumed  to  have  accepted  the  risk  incidental 
to  his  employment. ^^ 

There  seems  to  have  been  a  reversion  to  the  old  doc- 
trine in  a  recent  New  York  decision  where  a  proprietor 
was  held  hable  although  no  actual  negligence  on  his  part 
was  shown. 

It  is  rather  surprising  to  see  the  old  doctrine  of  absolute 
liabiUty  invoked  and  enforced  at  the  present  time,  but 
iSlamp  v.  Sixty-eighth  Street  Amusement  Company  ^^ 
seems  to  be  based  wholly  on  that  theor>'.  There  a  lion 
had  cscai)ed  during  a  performance,  and  a  panic  ensued, 
causing  the  plaintiff's  injuries.  While  the  learned  court 
rightly  held  that  the  panic  and  injury  were  a  direct  re- 
sult of  the  animal's  escape,  it  also  held  that  the  pro- 


<^Ervin  v.  Woodruff  (1907), 
119  A.  D.  (N.  Y.)  603;  103  X.  V. 
Supp.  lO.'jl.  One  who  places  hiin- 
solf  in  danpcr  of  attack  by  a  l)oar 
is  guilty  of  contributory  negli- 
gence. 

See:  Marqucl  v.  LaDiikc  (1893), 
96  Mich.  596;  55  N.  W.  lOOG; 
Jackson  v.  Baker  (1904),  21  Ai)i). 
D.  C.  100. 

"  Barman  v.  City  of  Miluunktc 
(1896),  93  Wis.  522;  07  X.  W. 
924;  33  L.  R.  \.  <1.VJ.  IMaintilT 
was  einployetl  in  a  park  where 
deer  and  elk  were  kept  and  while 


in  an  enclosure  with  the  anin)als, 
w;us  attacked  by  them  and  in- 
jured. He  was  held  to  have  ac- 
cepti^d  the  ordinary  risks  inciilent 
t«  the  business,  and  defendant 
was  not  liable. 

See:  Little  v.  City  of  Madison 
(1877),  42  Wis.  G43;  S.  C,  49 
Wis.  605;  6  X.  W.  249;  May  v. 
Burddt  (Eng.)  (1846), 9 Q.  B.  101; 
9  .\dol.  &  E.  (X.  8.)  101 ;  Filburn 
V.  Peoples  P.  &  A.  Co.  (Eng.) 
(1890),  25  Q.  B.  Div.  258. 

^ Stamp  V.  nsth  St.  Am.  Co. 
(1917),  159  X.  Y.  Supp.  683. 


318 


THE    LAW   OF   MOTION   PICTURES 


prietor  of  the  theatre  was  liable  irrespective  of  whether 
he  was  neghgent  or  not. 

To  this  doctrine  we  cannot  subscribe.     We  do  not 
think  that  the  case  will  stand. 


Section  98. — Crowds. 

It  has  been  held  neghgence  on  the  part  of  the  theatre 
proprietor  to  so  overcrowd  his  balcony  as  to  cause  the 
giving  way  of  the  rail."  Narrow  passageways,  resulting 
in  a  jamming  of  the  crowd,  and  injury  to  the  plaintiff 
will  also  make  him  Hable,  as  it  has  been  held  to  be  the 
proximate  cause  of  the  injury.^-  And  a  failure  to  guard 
the  space  under  a  platform  which  collapsed  and  killed  a 
boy  who  had  strayed  underneath  was  sufficient  to  charge 
the  defendant  with  liabiUty.^^ 


^^Weiner  v.  Scherer  (1909),  64 
Misc.  (N.  Y.)  82;  117  N.  Y.  Supp. 
1008.  Plaintiff  while  seated  in 
the  orchestra  was  injured  by  the 
giving  way  of  a  rail  on  the  bal- 
cony, causing  several  people  to 
fall   upon   him. 

"The  defendant  must  be  as- 
sumed to  lui\e  known  the  capac- 
ity of  the  balcony,  and  he  had  no 
right  to  permit  it  to  become  so 
overcrowded  as  to  cause  undue 
pressure  upon  the  rail.  The 
pressing  forward  of  the  people 
U)  view  the  performance  was  also 
to  be  expected,  and  that  this 
would  naturally  be  done,  by  the 
standees   should   have   been   an- 


ticipated; and  the  admission  of  a 
much  greater  number  of  people 
than  the  balcony  in  ordinary  use 
was  intended  to  contain  .  .  . 
made  it  a  question  for  submis- 
sion to  the  jury." 

^^  Bole  V.  Pittsburgh  A.  C. 
(1913),  205  Fed.  (C.  C.  A.)  468. 
Plaintiff  was  injured  while  at- 
tending a  baseball  game.  Held 
that  the  proximate  cause  of  the 
accident  was  the  act  of  defendant 
in  maintaining  a  narrow  passage- 
way, and  judgment  in  defend- 
ant's favor  was  reversed. 

<'' Murrell  v.  Swilh  (1910), 
152  Mo.  App.  95;  133  S.  W.  76. 
Plaintiff's    intestate,    a    boy    of 


HURT    m     lEIiFORMKU 


M\) 


In  one  case  fire  hroko  out  in  tlie  defendant's  circus, 
and  plaintiff  was  injuretl.  Defendant's  liability  was 
rested  upon  his  failure  to  supply  fire  extinf^uishers/' 

From  the  fore^oinp;  cases  the  rule  might  be  adduced 
that  the  i)ro|)rietor  of  a  theatre  or  other  place  of  amuse- 
ment is  bound  to  anticipate  the  gathering  of  great  crowds, 
and  he  is  in  duty  bound  to  make  some  suitable  provision 
for  their  safe  entry  and  exit,  their  disposal,  and  for  the 
common  emergencies  that  may  arise,  such  as  fire  and 
panic.'''' 


Section  99. — Hurt  by  performer. 

The  proprietor  of  a  theatre  is  mider  a  duty  to  exercise 
reasonable  care  in  safeguarding  the  audience  from  injury 


elKJit  years,  met  his  detitli  under 
:i  phitform  erected  by  and  under 
the  charge  of  the  defendant's 
managers  in  the  midst  of  fair 
grounds.  The  surging  of  tlic 
crowd  caused  the  jjlatforni  to 
collapse.  Held  that  harriers 
should  have  been  placed,  as  cliil- 
dren  might  iiave  been  expected 
to  go  into  this  space.  That  rea- 
sonabU*  diligence  and  caution 
was  the  measure  of  defendant's 
duty.  (Sec:  Van  Clccf  w  Chicago, 
23  L.  R.  A.  (N.  S.)  642.) 

^*Gnswol(l  V.  Ringling  (191.')), 
10.-)  A.  D.  (X.  Y.)  737;  1.^)0  X.  Y. 
Supp.  1022.  It  was  held  that  the 
question  of  negligence  was  for 
the  jurj-  in  a  case  where  a  sjkjc- 


talor  of  a  circus  was  injured  in 
endeavoring  to  get  out  ui)on  the 
breaking  out  of  fire  in  the  tent 
and  the  defendant  failed  to  have 
chemical  e.\tingui.shers  therein. 

"  Edwards  v.  N.  Y.  A  11.  h'.  A'. 
(ISS.")),  !»N  X.  Y.  24.').  Defend- 
ant had  lea.sed  Clilmore's  (lardens 
to  one  Kelley,  who  wjus  to  make 
all  alterations.  Kelley  permitte<l 
a  large  crowd  to  ent<T  upon  a 
gallery,  and  as  a  result  of  the  over- 
crowded condition  and  the  stami>- 
ing  of  the  people,  the  gallery  fell, 
injuring  plaintiff. 

By  a  tlivi(le<l  court,  four  to 
tlmM%  the  defendant  was  ln-ld  not 
liable.  Ch.  .1.  Ruger  writing  a 
long  dissenting  opinion  in  which 


320 


THE    LAW   OF   MOTION    PICTUKES 


likely  to  be  suffered  at  the  hands  of  performers.^^  It  has 
been  said  in  England  that  the  proprietor  impUedly  war- 
rants his  play  to  be  safe.®''  But  this  theory  would  seem 
to  break  dovm  where  the  entertainment  given  is  known 


he  maintained  that  inasmuch  as 
the  defendant  knew  the  purposes 
for  which  the  hall  was  let  and  the 
inadequacj^  of  the  gallery  to  ac- 
commodate a  large  crowd,  he  was 
guilty  of  negUgence,  and  should 
have  been  held  liable. 

The  dissenting  opinion  seems 
to  have  carried  greater  weight 
than  the  prevailing  opinion  in  the 
later  case  of  Atchison  Ely  v. 
Thomas,  104  A.  D.  (N.  Y.)  368; 
93  N.  Y.  Supp.  693. 

^  Brown  v.  Batchellor  (1908), 
69  Atl.  (R.  I.)  295.  It  was  held 
that  a  bill  of  complaint  alleging 
that  defendants  were  negligent  in 
faihng  to  provide  suitable  pro- 
tection upon  the  stage  to  prevent 
a  performer  on  a  bicycle  from 
riding  ofif  the  stage  stated  a  good 
cause  of  action. 

Cole  V.  Rome  Sav.  Bank  (1916), 
96  Misc.  (N.  Y.)  188;  161  N.  Y. 
Supp.  15.  Defendant  Edwards 
liad  engaged  a  trapeze  act.  Dur- 
ing the  progress  of  the  perform- 
ance the  mechanism  broke  and 
an  iron  hook  flew  out  and  struck 
])Iaintifif  in  the  audience. 


"I  think  upon  the  evidence  ia 
the  case  a  fair  question  of  fact 
was  presented  as  to  whether  the 
Campbell  Brothers  used  due  care 
in  the  erection  and  securing  of  the 
casting  net  and  as  they  were 
hired  to  give  the  exhibition  from 
which  the  proprietor  derived 
profit  it  was  the  business  of  the 
proprietor  and  not  that  of  Camp- 
bell Brothers.  The  relation  of 
respondeat  superior  therefore  ex- 
isted, and  the  proprietor  was 
chargeable  with  their  negli- 
gence." 

6^  CO.-C  V.  Coulson  (Eng.)  (1916), 
85  L.  J.  K.  B.  1081;  2  Ch.  177; 
114  L.  T.  599;  60  S.  J.  402;  32 
T.  L.  R.  406;  rev.  31  T.  L.  R.  390. 
Plaintiff  was  in  the  audience  of  a 
theatre.  An  actor  on  the  stage, 
discharging  a  pistol,  injured  him. 
A  verdict  in  plaintiff's  favor  was 
reversed,  the  Court  of  Appeal 
holding  that  while  defendant  im- 
pliedly covenanted  that  he  would 
use  reasonable  care  and  dili- 
gence, he  did  not  warrant  that 
the  members  of  his  company 
would  do  likewise. 


HURT    BY    PERFORMER 


321 


to  be  attended  with  some  danger,  although  it  might  be 
said  tliat  the  warranty  would  extend  to  the  place  where 
the  performance  is  given.  At  any  rate  a  c^uestion  of 
fact  would  be  presented  as  to  whether  the  proprietor  had 
taken  all  reasonable  preeauti(jns  to  prevent  injur}^  to  the 
patrons."'' 

It  has  been  held  that  one  attending  a  baseball  game 
does  so  with  full  knowledge  of  the  risk  he  takes  in  being 


".Ir/toW  V.  State  (1914),  163 
A.  1).  (N.  Y.)  25:j;  148  N.  Y. 
Supp.  47'.>.  Where  the  State 
Fair  C'oinini.s.sion  jxTmitted  a 
race  of  high  jjower  automobiles 
on  its  grounds  and  protected  the 
part  assigned  to  si^ctators  from 
tlie  track  by  a  wooden  fence  of 
flimsy  construction,  it  was  held 
liable  for  death  and  injury  of  per- 
son by  an  automobile  which 
broke  tlirough  sucli  fence. 

Conrad  v.  Clauve  (1883),  93 
Ind.  476.  Defendants  were  the 
owners  and  managers  of  an  amuse- 
ment park  to  wliicli  an  aihnission 
fee  was  charged.  A  part  of  tlic 
ground  was  allotted  to  target 
shooting.  Plaintiff  was  not  in- 
fonnetl  upon  entering  the  park 
that  a  part  thereof  wa.s  allotted 
to  target  shooting  and  hitched 
his  horse  within  the  proscribed 
area.  Defendants  were  held  liable 
for  the  value  of  the  horse  which 
was  shot,  u|xjn  the  ground  that 


there  was  a  duty  impcjsed  upon 
defendants  to  inform  plaintiff 
of  the  danger  of  hitching  liis  horse 
within  the  ground  set  aside  for 
target  shooting. 

Thompson  v.  Lowell  (1898), 
170  Ma.ss.  577;  49  N.  E.  913;  40 
L.  U.  A.  34.').  Where  a  .spectator 
at  a  grove  wius  struck  in  the  eye 
by  a  bullet  fired  by  a  performer 
therein,  he  was  entitled  to  go  to 
the  jury  on  the  question  whether 
defendant  had  taken  due  pre- 
caution to  guard  against  injur>'. 

A  railroad  corix)ration  which 
owned  and  maintained  such  a 
grove  also  held  liable. 

Ilallyburton  v.  Burke  Co. 
(1896),  119  N.  C.  526;  26  S.  E. 
114.  ^^^lere  a  horse,  on  a  race- 
track, l)olted  from  his  course  and 
injured  a  specttitor  who  was 
sitting  on  the  railings,  the  pro- 
prietor of  the  track  was  held  not 
liable. 


322 


THE    LAW   OF   MOTION   PICTURES 


struck  by  a  foul  ball.^^  But  where  the  screen  which  is 
provided  is  inadequate  plaintiff  may  recover.'" 

Nor  is  this  a  duty  owed  to  a  patron  alone,  but  the  pro- 
prietor, it  has  been  held,  owes  a  duty  to  a  trespasser  as 
well,  if  he  knows  of  the  latter's  presence."^ 

The  proprietor  is  liable  to  a  patron  for  insulting  and 
defamatory  language  addressed  to  the  latter  by  a  per- 
formerJ^ 


Section  100. — Miscellaneous  accidents. 

One  who  operates  a  scenic  railway  is  a  carrier  of  pas- 
sengers and  is  hkewise  bound  to  the  highest  degree  of 


^^  Crane  v.  Kansas  City  Base- 
ball (1912),  168  Mo.  App.  301; 
153  S.  W.  1076.  Plaintiff  had 
purchased  a  seat  in  the  grand 
stand  which  was  protected  against 
danger  of  being  struck  by  foul 
balls.  He  voluntarily  chose  to 
take  a  seat  in  an  unprotected 
area.    Defendant  held  not  liable. 

^°  Edling  v.  Kansas  City  Base- 
ball (1914),  181  Mo.  App.  327; 
168  8.  W.  908.  Plaintiff  was 
witnessing  a  ball  game  on  de- 
fendant's amusement  grounds. 
Plaintiff  was  sitting  in  a  stand 
which  was  screened.  A  foul  ball 
struck  the  screen,  broke  through 
and  hit  plaintiff.  Defendant  was 
held  liable. 

See  also:  Fox  v.  Doiu/herty,  2 
W.  N.  C.  (Pa.)  417;  where  it 
was  held  not  to  be  contributory 


negligence  to  sit  in  the  front  row 
of  the  orchestra. 

''Her  rick  v.  Wixon  (1899), 
121  Mich.  384;  80  N.  W.  117;  81 
N.  W.  333.  The  fact  that  plaintiff 
forced  his  way  into  a  show  tent, 
where  he  was  injured  by  the 
explosion  of  a  giant  firecracker  in 
the  course  of  the  performance, 
will  not  preclude  a  recovery 
based  on  the  proprietor's  negli- 
gence, since  the  duty  of  reason- 
able care  is  owed  even  to  tres- 
passers when  their  presence  is 
known. 

See  in  tliis  connection:  Aiufhlrey 
V.  Wilcx  (1917),  91  S.  K.  (S.  C.) 
303;  liamonns  v.  Grand  Rapids 
Iiy.Co.iV.)\7),  160  N.W.  (Mich.) 
382. 

''-  fntcrslalc  Am.  Co.  v.  Martin 
(1913),  8  Ala.  App.  481. 


MISCELL-VNEOLS   ACCIDENTS 


'A'2:\ 


care.'^  Ai\d  one  who  operates  a  "  iiicm'-gf)-roun(l "  may 
not  start  il  until  every  i)asseiiger  in  it  lias  been  seated."* 
A  swing  erected  in  an  amusement  park  must  not  be  main- 
tained in  a  defective  condition  ''  and  the  owner  of  a  park 


''*  Wash.  Luna  Park  v.  Goud- 
rich  (1010),  llOA'ii.  092;  GO  S.  K. 
977.  A  juil(;inent  in  favor  of 
pliiintifT  W11.S  iiffinned.  He  had 
been  :i  pu-ssengcr  in  a  "roller 
coaster"  car,  and  while  therein 
another  car  had  collided  with 
him,  causing  tlie  injury. 

O'Callayhan  v.  Dcllwood  Park 
Co.  (1900),  242  111.  33G;  89  N.  E. 
1005.  One  ojK*rating  a  scenic 
railway  was  lield  to  be  a  carrier 
of  pa.ssengers  and  bound  to  use 
tlie  same  degree  of  care  as  any 
other  carrier  of  passengers. 

Pointer  v.  Mountain  R.  C.  C. 
(1917),  180  S.  W.  (Mo.)  SO."). 
The  rule  of  res  ipsa  lo(iuitur 
on  scenic  railways  not  held  to 
apply. 

Lunisdiii  V.  Thompson  Scenic 
A??/.  (1000),l.i().\.  1).  (X.  V.)20!); 
114  N.  V.  Supp.  421.  Action 
for  negligence  on  scenic  railway-. 
Verdict  for  jjlaintitT  reversed. 

Sec:  lluncekc  v.  U'.  liriijhUm 
AuHusement  Co.  (1903),  80  A.  D. 
(X.  Y.)  2G8;  80  X.  Y.  Supp.  2(11 ; 
Barrett  v.  Lake  Ontario  Ikach 
Imp.  Co.  (1003),  171  N.  V.  310; 
66   X.   E.   068. 


On  the  question  of  liabilHy  to  a 
trespasser  see:  Aughtrey  v.  Wiles 
(1017),  01  S.  E.  (S.  C.)  303. 
PlaintitT  non-suited  after  injury 
sulTered  on  automobile  race-track 
on  the  ground  that  he  was  a 
trespa.s.ser.  Ramonas  v.  Grand 
Rapids  Ry.  Co.  (1017),  160  X.  W. 
(Mich.)  382. 

^*  Harris  v.  Crawley  (1012), 
170  Mich.  381;  136  X.  W.  356. 
The  (juestion  in  this  ca.se  was 
whether  defendant  was  negligent 
in  starting  his  "merry-go-round" 
before   plaintiff  was  seated. 

See  Linthicum  v.  Truitt  (1911), 
2  Boyce  (Del.),  338;  80  Atl.  245, 
on  the  (juestion  whether  it  was 
negligence  to  attempt  to  board  a 
"merry-go-round"  while  it  was  in 
motion. 

^'' Schwab  V.  .[nderson  Sleam- 
ImhiI  Co.  (1011),  ()6  Wjush.  236: 
11',)  Pac.  614.  The  owner  of  a 
park  was  held  not  liable  for  an 
injury  to  the  plaintiff  uix)n  a 
swing  erected  just  outside  the 
limits  of  the  park,  although  thert^ 
is  a  short  and  logical  dissenting 
opinion  by  Judge  Chadwick  which 
gives  the  better  rule. 


324 


THE    LAW    OF   MOTION   PICTURES 


is  likewise  liable  to  one  who  is  injured  by  a  turnstile  at 
the  gate7® 

While  one  who  was  riding  on  an  amusement  device  was 
non-suited  by  reason  of  his  failure  to  show  a  faulty  con- 
struction of  the  device/^  it  was  held  that  where  the  ac- 
cident was  caused  by  the  act  of  the  defendant's  employe, 
a  question  of  fact  was  presented  for  the  jury."^ 

To  leave  one's  position  in  a  grand  stand  and  go  to  an 
exposed  part  of  the  field  has  been  held  contributory  neg- 
ligence."^ The  proprietor  of  a  swimming  bath  was  held 
not  liable  because  the  attendants  furnished  by  him  failed 
to  rescue  plaintiff's  intestate.^" 


^«  Marx  V.  Ontario  H.  &  A.  Co. 
(1914),  211  N.  Y.  33;  105  N.  E.  97. 
It  was  held  that  a  sudden  back- 
ward movement  of  a  turnstile 
through  wliich  it  was  necessary 
for  patrons  of  an  amusement 
park  to  pass,  by  one  of  defend- 
ant's attendants,  causing  an  in- 
jury to  a  ticket  holder,  rendered 
the  defendant  liul:)le. 

"  Fennar  v.  Atlantic  Am.  Co. 
(1913),  84  X.  J.  L.  691;  87  Atl. 
344,  Plaintiff  while  riding  on  the 
"Human  Niagara  Falls"  was  in- 
jured. Ilcbl  tliut  in  tlie  absence 
of  any  evidence  to  show  faulty 
construction  or  want  of  repair, 
the  complaint  was  bad. 

"  Hays  V.  Kldor  Am.  Co.  (1912), 
51  Pa.  Sup.  Ct.  420.  A  bamboo 
Blidc  in  an  amusement  park  was 
used    by    plaintilT,    who    alleged 


that  by  reason  of  the  start  or 
shove  given  him  b}'^  the  defend- 
ant's employe  he  was  injured. 
Held  a  question  for  the  jurj'. 

-^  Burns  v.  Herman  (1910),  48 
Colo.  359;  113  Pac.  310.  Where 
defendant  provided  a  grand  stand 
where  the  spectators  were  to  sit 
and  the  plaintiff  voluntarily  left 
the  i)Iacc  furnished  l)y  defendant 
and  went  to  a  place  where  he  was 
in  danger  of  being  injured,  it  was 
held  that  plaintiff  was  guilty  of 
contributory  negligence. 

^^  Levinsky  v.  Cooper  (1911), 
142  S.  W.  (Tex.)  9.59.  Defend- 
ants conducted  a  natatorium,  and 
plaintiff's  intestate,  while  swim- 
ming therein  was  drowned.  Wliile 
it  was  held  that  the  proprietor 
of  the  jilace  was  bound  to  exer- 
cise reasonable  care  in  furnishing 


ACTS   OF  STRANGERS 


32.1 


It  is  a  noKligont  act  for  a  street  railway  company  to 
run  its  car  at  full  speed  opposite  a  point  where  people  are 
leaving  a  theatre  in  large  numbers.*' 

Section  101. — Acts  of  strangers. 

The  i)roi)rietor  is  n(jt  haijle  for  the  acts  of  patrons  or 
strangers  unless  they  are  such  as  could  have  reasonably 
been  foretold. 

"Wliile  the  defendants  were  bound  to  exercise  reason- 
able care  to  protect  their  invitees  from  peril,  they  were 
not  insurers  of  their  safety,  and  if  the  accident  occurred 
through  the  willful  act  of  a  third  party,  the  defendants 
could  not  Ijc  held  liable  therefor."  *- 

Depredations  l)y  boys  committed  at  intervals  would  be 


attondants,  lie  was  not  responsible 
if  the  attendants  failed  to  rescue 
the  intestate. 

•"  Fuirbdiiks  V.  Montreal  St.  Ry. 
Co.  (Can.),  311).  L.R.72S. 

See  generally  on  accidents: 
Cmunneau  v.  Muskegon  (190C), 
145  Mich.  .'il4;  lOS  N.  W.  720; 
Phillips  V.  Wisconsin  State  (l.S,S4), 
60  Wisconsin,  401;  19  N.  W.  377; 
Iliggins  v.  Franklin  Co.  (lOOG), 
100  Maine.  r^Cur,  62  Atl.  70.S; 
Currier  v.  Boston  Music  Hall 
(1S8S),  1.35  Ma.ss.  414;  Hart  v. 
Wash.  Park  (1895),  157  III.  9; 
41  N.  E.  620;  Scott  v.  Unit^rsily 
of  Mich.  (190S),  152  Mich.  6.S4; 
116  N.  W.  624;  Selinns  v.  Ver- 
mont  State    (18SS),   60   Vt.    240; 


15  Atl.  117;  Stair  v.  Kane  (1907), 
156  Fed.  (C.  C.  A.)  100;  Decatur 
V.  Porter  (1907),  137  111.  App.  448; 
George  v.  Univ.  of  Minn.  (1909), 
107  Minn.  424;  120  X.  W.  750. 

'^-Meeker  v.  Smith  (1903),  84 
A.  D.  (N.  Y.)  1 1 1 ;  81  N.  Y.  Supp. 
1007.  PlaintifT's  intestate  while 
visiting  defendant's  amusement 
park  was  killetl  by  the  falling  of  a 
jack,  a  part  of  an  apparatus  used 
in  defendant's  park.  The  ac- 
cident occurred  through  the  will- 
ful act  of  a  stranger. 

See  also:  Williarns  v.  Mineral 
C.  P.  A.  (1905),  128  Iowa,  32; 
102  X.  W.  78;?;  Cretnore  v.  Huber 
(1897),  18  A.  D.  (X.  Y.)  231; 
45  X.  Y.  Supp.  047. 


326  THE    LAW    OF   MOTION    PICTURES 

something  to  put  the  proprietor  on  his  guard,  and  he 
would  be  bound  to  guard  against  future  acts  of  a  Uke 
nature;  but  if  no  prior  acts  had  occurred,  he  would  not 
be  hable  for  the  injury  sustained  on  this  occasion. ^^ 

Section  102. — Assault. 

The  proprietor  of  a  theatre  owes  his  patron  the  duty 
of  protecting  him  against  assault,  both  of  the  theatre 
employes  and  strangers.  "Common  carriers,  inn-keepers, 
merchants,  managers  of  theatres  and  others  who  invite 
the  pubUc  to  become  their  patrons  and  guests,  and  thus 
submit  personal  safety  and  comfort  to  their  keeping, 
owe  a  more  special  duty  to  those  who  may  accept  such 
invitation.  Such  patrons  and  guests  have  a  right  to  ask 
that  they  shall  be  protected  from  injury  while  present  on 
such  imdtation  and  particularly  that  they  shall  not  suffer 
wrong  from  the  agents  and  servants  of  those  who  invited 
them."  ^^    The  proprietor  is  in  duty  bound  to  maintain 

^^  Flanagan  v.  Goldberg  (1910),  tions,  or  had  done  so,  and  there- 

137  A.  D.  (N.  Y.)  92;  122  N.  Y.  upon  negligently  failed  to  protect 

Supp.    205.      Plaintiff    attended  those  invited   to   the   entertain- 

a  motion-picture  show  and  during  ment." 

the  performance  a  board  fell  upon  ^*  Dickson  v.   Waldron   (1893), 

her.  135  Ind.  507;  34  N.  E.  506;  35 

'<If  defendants   negligently  so  N.  E,  1.    The  court  held  that  in 

placed  the  hoard  that  it  fell  and  such  case,  where  the  duty  of  the 

(lid  the  injvny,  they  are  liable,  servant  was  to  preserve  order  in 

They  would  not  l)e  liable  for  an  the   theatre   and   to   remove   of- 

injury  caused  by  a  board  thrown  fensive  patrons,  the  servant  was 

into   the   hall,   unless   the   facts  of  necessity  the  judge  whether  the 

show  that  they  had  knowledge,  conduct  of  the  patron  was  such 

actual  or  constructive,  that  the  as  to  require  his  removal  and  that 

boys  were  committing  depreda-  the  mastcM-  was  lial)le  wliere  the 


ASSAULT 


327 


order  and  (|uiol  during  ])orformanc('s  in  the  thoatro  and 
may  request  patrons  to  be  (juiet,  l)ut  this  should  l>e  done 
politely  and  without  any  undue  humiliation." 

While  the  i)roprietor  as  a  general  rule  is  not  respcnisihlc 
for  the  act  of  other  patrons'^''  he  is  nevertheless  liable  for 
such  acts  when  committed  tlirough  his  agency  or  where 
he  has  had  reason  to  anticipate  such  acts  and  could  have 
taken  measures  to  prevent  them.^"     He  is  likewise  an- 

scrv'iiiit  erred,  and  that  tliis  rule  ^  Cremore     v.     Iluber     (1S97), 

ai)i)lied    to   a   special    policeman      18  A.  D.  (X.  Y.)  231;  45  N.  Y. 


ennuficd  l)y  the  theatre  proprietor. 

Oakluiul  V.  Bingham  (18U2), 
4  Ind.  App.  545;  31  N.  E.  383. 
One  conducting  an  amusement 
park  was  held  liable  for  injuries 
sustained  by  a  patron  through  an 
a.ssault  made  by  a  gatekeeper. 

Fowler  v.  Holmes  (1889),  3 
N.  Y.  Sui^p.  816.  A  person  col- 
lecting tickets  at  entrance  to 
defendant's  theatre  assaulted 
plaintiff  who  attempted  to  enter, 
having  a  ticket  of  admission. 
Held  that  the  trial  court  properly 
submitted  the  ([uestion  to  the 
jury  whether  defendant's  ticket 
taker  was  acting  within  the  scope 
of  his  employment  at  the  time 
he  a.ssaulted  jjlaintiff. 

See  also:  Kj)stein  v.  (Jurdun 
(1909),  114  X.  Y.  Supp.  438; 
Kesslcr  v.  Deutsch  (1904) ,  44  Misc. 
(X.  Y.)  209;  88  X.  Y.  Supi).  84G. 

*'  Rtisso  V.  Orpheum  Theatre 
(1914),  GO  So.  (La.)  385. 


Supj).  947. 

"'  Mastad  V.  Swedinh  Brethrnt 
(1901),  83  Minn.  40;  85  X.  W. 
913.  A  person  managing  and 
controlling  a  puljlic  place  of 
amusement,  to  which  he  invites 
the  public,  on  payment  of  an 
admission  fee  to  attend,  and  at 
which  place  he  sells  to  his  cu.s- 
tomcrs  and  patrons  intoxicating 
licjuors,  and  who  sells  such  licjuors 
to  one  in  attendance  at  such  place 
and  thereby  renders  him  drunk 
anil  disorderly,  well  knowing 
that  when  in  that  condition  he 
is  likely  to  commit  assaults  u[H)n 
others  without  cau.se  or  jirov- 
ocution  is  bound  to  exercise 
rea.sonable  care  to  protect  his 
other  customers  and  patrons  from 
such  assaults  and  insults,  and 
for  a  failure  to  do  so  is  liable  in 
tlaniages  at  the  suit  of  one  as- 
saulted aiul  injured. 

Scc>:      !  iiih'iiniijinlis    V.     Dairson 


328 


THE    LAW   OF   MOTION   PICTURES 


swerable  for  the  insulting  and  abusive  language  of  the 
performers.^^ 

Colored  people  may  not  be  ejected  from  the  theatre  ^^ 
and  for  an  assault  committed  by  the  servants  of  the  pro- 
prietor, he  is  liable. 

A  patron  who  occupies  a  seat  to  wliich  he  is  not  en- 
titled may  be  asked  to  give  it  up,  and  if  he  refuses  the 
usher  or  other  servant  may  use  such  reasonable  degree 
of  force  as  will  accompHsh  the  purpose.^"    But  he  must 

(1903),   31    Ind.    App.    605;    68         ^^  Drew  v.  Peer  (1880),  93  Pa. 

N.  E.  909.  234.    Defendant  held  liable  for 

»» Interstate  Am.  Co.  v.  Martin     ejecting  a  colored  man  and  his 


(1913),  8  Ala.  App.  481;  62  So. 
404.  The  defendant,  the  pro- 
prietor of  a  theatre,  was  held 
liable  in  damages  to  plaintiff,  a 
patron  of  the  theatre,  for  the  act 
of  a  performer  in  addressing  to 
plaintifT  insulting  and  defamatory 
language. 

The  court  said:  "It  is  not  to  be 
doubted  that  one  of  those  duties 
is  to  accord  to  the  ticket  holder 
civil  treatment  while  he  is  exer- 
cising the  privilege  for  which  he 
has  contracted.  This  duty  is 
one  that  may  be  breached  by  the 
proprietor  himself  or  by  mis- 
treatment at  the  hands  of  an 
employe  while  acting  within  the 
scope  or  range  of  his  employ- 
ment, and  the  mistreatment  may 
consist  in  the  use  of  uncivil  and 
offensive  language  afldressed  to  or 
spoken  al)out  the  tirkot  holder." 


wife  from  his  theatre. 

Indianapolis  v.  Dawson  (1903), 
31  Ind.  App.  605;  68  N.  E.  909. 
Defendant,  a  street  railway  com- 
pany, having  knowledge  of  a 
conspiracy  to  attack  all  colored 
persons  who  attended  at  its 
amusement  park,  which  it  owned, 
transported  a  negro  to  its  park. 
It  was  held  liable  for  injuries 
sustained  by  plaintiff  because 
of  an  assault  at  the  park. 

^  Hyde  v.  Toronto  Theatre 
(Can.),  17  O.  W.  R.  380.  The 
usher  may  use  reasonable  force 
in  ejecting  from  the  theatre 
one  whose  ticket  does  not  en- 
title him  to  that  particular  seat. 

See  also:  Macdmmn  v.  Duff 
(1887),  14  Daly  (N.  Y.),  315; 
Younger  v.  Jwlah  (1892),  111 
Mo.  303;  Ijcuus  v.  ArnoUi  (Eng.) 
(1830),  4  C.  and  P.  3.54. 


ARRAT'I/r 


32f> 


ho  Rivpn  a  roasonahlo  opportunity  to  explain,^'  ami  if  it 
turns  out  that  the  i)ropri('tor  has  made  the  mistake,  the 
patron  may  recover  punitive  as  well  as  compensatory 
damages.*^ 

said  scat  as  'taken'  could  pve 
the  prosecutor  a  riglit  to  tliat 
which  someone  else  had  previously 
bought  and  paid  for.  .  .  ." 

^^  Armstrong  v.  Stair  (1914), 
217  Miiss.  r>34;  105  N.  E.  442. 
Plaintiff  purcha.setl  a  balcony 
ticket.  He  gave  it  to  the  usher 
who  left  him  standing,  and  plain- 
tiff then  occupied  the  hust  seat. 
I.ator,  when  asked  for  his  check 
he  tried  to  account  for  its  absence, 
and  a  special  officer  was  sent  for. 
The  latter  took  him  into  custody 
and  brought  him  to  a  ix>lice 
station  where  he  wa-s  forced  to 
remain  all  night.  IlcUt  that  the 
defendants,  including  the  man- 
agers of  the  theatre,  were  liable 
for  a.s.sault,  false  imprisonment 
and  malicious  prosecution. 

See  in  this  connection:  Weiss  v. 
Skinner  (1915),  178  S.  W.  (Tex.) 
.'i4.  For  wrongful  ejection  from 
the  theatre  because  of  the  pur- 
chase of  a  ticket  for  another  i^er- 
formance  than  that  attendetl,  the 
manager  of  the  theatre  was  heUl 
not  liable  in  contract,  because  he 
was  not  a  party  thereto,  nor  in 
tort,  for  he  did  not  eject  plaintiff. 
»-  Webcr-Stnir  v.  Fisfier  (1009), 


Commornrcnlth  v.  Poirell  (1873), 
10  Phila.  (Pa.)  ISO.  "A  visiUjr 
at  a  theatre  or  other  place  of 
amusement  is  entitled  to  a  seat. 
This  right  to  some  extent  de- 
jMMids  upon  the  character  of  his 
ticket.  If  for  a  reservetl  seat, 
he  has  a  right  to  that  particular 
seat.  If  not  reserved,  then  to 
any  one  he  may  find  unoccupied, 
and  which  had  not  i)reviously 
been  sold  to  another.  I  instructed 
the  jury  that  if  the  prosecutor 
selected  a  seat  in  that  portion  of 
the  building  called  for  by  his 
ticket,  and  that  there  was  nothing 
upon  the  said  seat  to  indicate 
that  it  was  'taken',  and  no 
notice  had  in  fact  been  given  pros- 
ecutor i)rior  thereto  that  it  had 
been  sold  to  someone  else,  he 
had  a  right  to  occupy  it,  and  the 
act  of  the  d(>fen(l:uit  in  ejecting 
liim  therefrom  was  an  a.ssault  and 
battery.  Subsequent  reflection 
has  satisfied  me  that  it  is  not  so 
much  a  (juestion  of  notice,  jis  of 
whether  there  had  l)een  an  actual 
bona  fide  .sale  of  that  particular 
seat  to  a  third  party.  If  .so,  no 
neglect  on  the  part  of  the  i)n>- 
prietor  of  the  niusruiu  in  marking 


330 


THE    LAW   OF   MOTION    PICTURES 


The  patron  also  owes  a  duty  to  the  proprietor  to  con- 
duct himself  in  a  peaceable  and  orderly  manner,  to  retain 
the  seat  sold  to  him  and  to  refrain  from  causing  any  riot 
or  disturbance.^^  He  cannot  hold  the  proprietor  Hable 
where  he  has  violated  that  duty. 

119  S.  W.  (Ky.)   195.     Plaintiff         In  this  case  plaintiff  was  ac- 
received  evening  tickets  instead      companied  by  two  other  people, 


of  tickets  for  a  matinee  by  a 
mistake  of  the  theatre  employe. 
Held  that  he  was  entitled  to 
punitive  damages. 

8'  Lewis  V.  Arnold  (Eng.) 
(1830),  4  C.  and  P.  354.  Action 
for  assault  and  false  imprison- 
ment. Plaintiff  had  bought  a 
ticket  for  the  pit.  There  being 
standing  room  only,  he  attempted 
to  climb  into  a  box.  From  this 
he  was  ejected  and  escorted  out 
of  the  theatre.  An  altercation 
arose,  and  plaintiff  was  arrested. 
Chief  Justice  Tindall  said:  "Even 
if  this  plaintiff  had  been  informed 
that  there  was  room  in  the  pit 
of  this  theatre  when  there  was 
not,  which  in  this  evidence  is 
matter  of  doubt,  he  had  still  no 
right  to  go  into  this  private  box. 
His  proper  course,  if  there  was  not 
room,  was  to  go  out  of  the  theatn; 
and  demand  the  return  of  his 
money.  .  .  .  Mr.  Arnold  has 
tJKTcfon!  a  right  fo  turn  the 
plaintiff  out  of  the  private  box, 
using  no  more  force  than  was 
necessary," 


and  in  the  altercation  that  took 
place  outside  of  the  theatre  one 
of  these  people  struck  a  blow. 
Held  that  even  if  plaintiff  was 
passive,  all  three  were  engaged 
in  a  common  purpose,  and  he  was 
therefore  nonsuited. 

Clifford  V.  Brandon  (Eng.) 
(ISIO),  2  Camp.  358.  Action  for 
assault  and  false  imprisonment. 
Plaintiff  had  entered  Covent 
Garden  during  a  disturbance 
in  the  audience  due  to  the  raise 
in  prices  of  the  seats.  On  going 
out,  although  not  actively  taking 
part  in  the  rioting,  he  was  ar- 
rested. Subsequently  ho  was  dis- 
charged and  on  this  action,  Chief 
.lustice  Mansfield  said:  "The  jury 
will  consider  whether  Mr.  Clifford 
was  an  instigator  of  the  riot, 
which  one  of  his  witnesses  has 
represented  as  resembling  a  i\\\\\v- 
rel  among  a  thousand  drunken 
sailors.  The  law  is  that  if  any 
person  encourages  or  promotes, 
or  takes  part  in  riots,  whether 
by  words,  signs  or  gestures,  or 
by  wearing  the  badge  or  ensign 


WHO  IS   i.i\ni,F. 


r^r^i 


The  rule  as  to  jninitivc  daina^<'s  is  that  whore  the 
assault  was  wanton  or  N'icious,  such  damages  are  recover- 
able. Proof  of  knowledge  of  viciousness  of  the  servant 
has  been  held  necessar>'  in  one  state  and  not  necessary 
in  another.^'  It  is  always  for  the  jury  to  pass  on  the 
(question  whether  the  manager  himself  instigated  the 
assault,^'  and  where  the  reason  assigned  for  the  eject- 
ment was  that  the  ]xitron  was  drunk  and  disorderly, 
evidence  showing  that  on  i)rior  occasions  he  was  not 
drunk  and  disorderly  is  inadmissible.^'^ 

Section  103. — Who  is  liable. 

The  general  rule  is  that  the  proprietors  of  parks,  fairs 
and  amusement  grounds  are  liable  for  iujiu'ies  sustained 
because    of    the    negligence    of    their    concessionaires,'-'^ 


of  the  rioters,  he  is  liimself  to 
1)0  eonsideretl  ii  rioter.  ..." 

See:  lim>io  v.  Oipheum  Theatre 
(1914),  60  So.  (La.)  385;  Greg- 
ory V.  Brun-fiu'ick  (Eng.)  (1843), 
GMan.&  (1.205. 

»*  Walsh  V.  Ilijdc  A  Bchman 
Amiuic.  Co.  (190G),  113  A.  D. 
(N.  Y.)  42;  98  X.  Y.  Supp.  9G0. 
PlaintifT,  :i  ticket  holder,  was 
ejected  from  defendant's  tlieatre 
and  was  badly  beaten  and  bruised. 
\'erdiet  granting  specifie<l  amount 
for  eom|)ensatory  damages  and 
an  additional  amount  for  puni- 
tive damages  was  modifieil  to 
the  extent  of  disallowing  the  sum 
awardctl     as     jMitiitive     damages 


upon  the  ground  that  no  i)roof 
had  been  adduced  showing  knowl- 
edge on  defendant's  jjart  of  vi- 
ciousnc.s.s  of  his  servants. 

Hut  see:  Weber-Stair  v.  Fisher 
(1909),  119  S.  W.  (Ky.)  195, 
where  punitive  damages  were 
allowed. 

-*  Melts  V.  Charleston  Theatre 
(1910),  89  S.  E.  (S.  C.)  .389. 

^  Wells  Am.  Co.  v.  Mean^ 
(1911),  5G  So.  (Ala.)  .594. 

'•  linbicz  V.  liirerriew  Sharp- 
shooters (1911),  IGl  111.  App.  3.5G; 
atT'd  25G  111.  24:  99  X.  E.  8G0. 
.V  general  admission  was  charged 
to  each  pors(m  entering  the  |);irk. 
Hrlil  th:it  proprietor  of  park  wiis 


332 


THE    LAW    OF   MOTION   PICTURES 


although  in  one  or  two  states  it  has  been  held  otherwise.^^ 
The  test  of  liability  seems  to  be  a  participation  in  the 


liable  for  injuries  sustained  while 
on  concessionaire's  apparatus. 

Dietze  v.  Riverview  Park  (1913), 
181  111.  App.  357. 

Smith  V.  Cumberland  Soc. 
(1913) ,  163  N.  C.  346;  79  S.  E.  632. 
Plaintiff,  while  attending  a  fair, 
was  requested  to  take  hold  of 
the  rope  of  a  balloon.  On  doing 
so,  his  foot  was  caught  and  he 
was  carried  up.  Nonsuit  was 
reversed,  as  there  was  sufficient 
evidence  to  have  gone  to  the  jury. 

Turgeon  v.  Connecticut  Co. 
(1911),  84  Conn.  538;  80  Atl. 
714.  This  case  holds  that  it 
makes  no  difference  whether  an 
admission  fee  is  charged  with  re- 
spect to  the  lial)ihty  of  a  pro- 
prietor of  an  amusement  park 
where  the  patron  is  injured  while 
on  a  device  operated  by  a  con- 
cessionaire. The  court  holds  that 
the  defendant  is  not  relieved 
from  his  obligation  because  the 
device  is  run  by  an  independent 
contractor  and  cites  the  following 
cases  in  support  of  its  position: 
Note  to  Ilollis  V.  Kansas  City  etc. 
Assoc.  (1907),  14  L.  R.  A.  (N.  S.) 
284;  205  Mo.  508;  103  S.  W.  32; 
Thornton  v.  Agricultnral  Society 
fl(K)2),  97  Mo.  lOS;  .53  Atl.  979; 
Schcck      v.      J'laltdcntschc      Volk- 


best  (1900),  64  N.  J.  L.  624;  46 
Atl.  631;  Richmond  etc.  Ry.  Co.  v. 
Moore  (1897),  94  Va.  493;  27 
S.  E.  70;  Texas  State  Fair  v. 
Brittain  (1902),  118  Fed.  (C.  C. 
A.)  713;  Conradt  v.  Clauve  (1883), 
93  Ind.  476;  Thompson  v.  Lowell 
etc.  Co.  (1898),  170  Mass.  577; 
49  N.  E.  913;  Blakeley  v.  White 
Star  Line  (1908),  154  Mich.  635; 
118  N.  W.  482;  Dunn  v.  Agri- 
cultural Society  (1888),  46  Ohio 
St.  93;  18  N.  E.  496;  Mastad,  v. 
Swedish  Brethren  (1901),  83  Minn, 
40;  85  N.  W.  913;  Fox  v.  Buffalo 
Park  (1897),  21  A.  D.  (N.  Y.) 
321;  47  N.  Y.  Supp.  788;  Broum 
V.  BatcMler  (1908),  29  R.  I.  116; 
69  Atl.  293;  2  Cooley  on  Torts 
(3d  Ed.),  p.  1259. 

^^Knottnerus  v.  North  Park 
(1892),  93  Mich.  348;  53  N.  W. 
529.  Plaintiff  was  injured  while 
riding  on  a  switch-back  railway 
operated  by  owner  at  defendant's 
pleasure  resort.  The  owner  of  the 
switch-back  railway  was  a  con- 
cessionaire of  defendant.  De- 
fendant was  held  not  liable. 

Smith  v.  Benick  (1898),  87 
Md.  610;  41  Atl.  56.  A  balloonist 
was  engaged  by  defendant  to 
make  as('ei\sions  in  defendant's 
park.     The    balloonist  Furiiislied 


WHO    18    LIABLE 


333 


profits  dorivod  from  the  payment  of  adniission  and  otlier 
sources,  and  a  reservation  of  some  rights  in  tlie  premises, 
even  though  leased  away.'*'*  But  where  the  proprietor 
parts  witli  all  control  he  is  not  liable. ^"^    Even  where  the 


his  own  help.  One  of  the  poles 
used  ill  connection  with  the  as- 
censions fell  and  caused  an 
injury  to  plaintilT.  The  balloonist 
was  a  competent  person.  Held 
that  the  balloonist  was  an  inde- 
l)en(lent  contractor  and  that  de- 
fendant having  used  care  in  en- 
gaging him,  was  not  liable  for 
injuries  .sustained  by  plaintiff 
through  an  act  of  the  indepen- 
dent contractor.  There  was  a 
dissenting  opinion  holding  that 
defendant  should  have  used  suf- 
ficient care  to  have  foreseen  such 
an  accident. 

^  Stickcl  V.  Rifcrviciv  Sharp- 
shooters (1910),  159  111.  App.  110. 
Where  the  proprietor  of  an 
amusement  resort  receives  a  share 
of  the  receipts  of  one  of  his  con- 
cessionaires he  is  liable  for  in- 
juries sustained  by  a  patron  on 
the  structure  or  apparatus  of  the 
concessionaire. 

Wichita  Falls  Co.  v.  Adams 
(1912),  146  S.  W.  (Tex.)  271.  An 
amusement  park  pavilion  was 
owned  by  a  railroad.  Plaintiff's 
son  wjis  injured  therein.  If  rid 
that    the    company    was    hable 


for  while  it  had  leased  away 
some  rights  therein,  it  has  also 
reserved  some,  and  .so  was  charge- 
able with  negligence. 

"« McCain  v.  Majestic  Bldg. 
(190S),  120  La.  306;  45  So.  258. 
The  owner  of  a  theatre  held  not 
liable  for  injury  cau.sed  to  one 
who  fell  on  the  siilewalk  in  fnjnt 
of  it,  as  he  was  no  longer  in  con- 
trol, but  had  leased  the  theatre 
away. 

Mirsky  V.  Adkr  (1910),  123 
N.  Y.  Supp.  816.  Where  the 
defendant  established  that  he 
hatl  leased  the  theatre  to  some 
tliinl  party  rcser\'ing  .solely  the 
right  to  use  it  on  Sundays  anil 
where  the  evidence  also  showed 
that  even  on  Sundays  the  de- 
fendants had  leased  it  to  other 
IKTsons;  Held  that  defendant 
was  not  in  control  of  the  theatre 
and  was  not  liable  for  injuries 
sustaintnl  by  a  patron  while  on 
the  premises  on  a  Sunday. 

See:  Edwards  v.  N.  Y.  &  H.  R. 
R.  (1885),  98  N.  Y.  245;  Cok 
V.  Rome  Sav.  Bank  (1916),  96 
Mi.sc.  (N.  Y.)  ISS;  161  X.  Y. 
Supp.  115. 


334 


THE    LAW    OF   MOTION   PICTURES 


lessee  is  holding  over  after  the  term  of  his  lease,  the  pro- 
prietor is  nevertheless  Uable.^"^ 

One  who  is  not  the  proprietor,  but  is  in  charge  of 
grounds  where  exhibitions  are  given,  participates  in  the 
distribution  of  advertising  matter,  and  derives  a  share  of 
the  proceeds  taken  in  from  the  use  of  apphances  upon 
which  the  plaintiff  was  injured,  is  hable.^°- 

It  occasionally  happens  that  a  member  of  the  company 
playing  in  a  theatre  is  injured  by  a  stage-hand.  The  rule 
here  is  that  although  the  theatre  was  leased  for  a  per- 
centage of  the  gross  receipts,  such  stage-hand,  hired  and 
paid  by  the  proprietor,  while  temporarily  under  the  con- 
trol of  the  company,  is  actually  the  servant  of  the  pro- 
prietor, and  the  latter  is  liable  for  his  tortious  acts.^"^ 


i<"Ox/o?-(Z  V.  Leathe  (1896),  165 
Mass.  254;  43  N.  E.  92.  De- 
fendant leased  his  building  for 
four  days  for  use  in  theatrical 
entertainments.  He  had  charge 
of  box  office  until  specific  sum 
was  received  l)y  him  and  also 
furnished  the  lights.  He  was 
held  liable  for  injuries  sustained 
by  plaintiff  by  reason  of  the 
falling  of  a  platform  at  a  time 
when  the  lessee  was  holding  over, 
ujTon  the  same  terms,  after  the 
e.\])iration  of  the  original  term. 

'"2  IIolUs  V.  /v««.srt.s  City  (1907), 
205  Mo.  508;  103  S.  W.  .32.  One 
having  general  charge  of  grounds 
where  exhibitions  are  given,  par- 
ticipates   in   distribution   of   ad- 


vertising matter  and  derives 
share  of  proceeds  taken  in  from 
use  of  appliance  upon  which 
plaintiff  was  injured  is  liable. 

See  also:  Stickel  v.  Riverview 
Sharpshooters  (1910),  159  111. 
App.  110;  Wichita  Falls  Co.  v. 
Adam  (1912),  146  S.  W.  (Tex.) 
271. 

'»' Doiw  v.  Henderson  (1895), 
85  Hun  (N.  Y.),  300;  32  N.  Y. 
Supp.  953.  Plaintiff,  while  act- 
ing as  directress  for  the  Julia 
Marlowe  company,  was  injured 
by  the  negligent  act  of  a  stage- 
hand, who  was  under  the  g(>neral 
employ  of  tlie  (Icfcndnnt.  Tlu; 
fact  that  for  a  percentage  of  tlie 
receipts  the  defendant  had  agreed 


PROPERTY    LOST    IN    THEATRE 


335 


On  the  other  liuiid,  tlie  i))()i)ri('t()r  of  the  liicutre  is  not 
lial)l('  for  the  torts  of  the  company's  own  employes  even 
thougli  the  company  is  playing  under  a  Uke  arrangement 
of  a  i)crcentage  of  the  gross  receipts."" 

The  lessees  of  a  theatre  were  held  liable  for  an  assault 
committed  l)y  an  usher  in  their  employ,  on  the  theory 
that  while  they  were  not  joint  tort-feasors  they  were 
employers,  and  as  long  as  the  usher  was  acting  within  the 
scope  of  his  duty,  they  were  responsible  for  his  acts.^°^ 

Section  104. — Property  lost  in  theatre. 

The  theatre  proprietor  is  no  insurer  of  the  property  of 
his  patrons,  where  the  same  has  not  been  committed  to 
liis  care  especially.    And  where  so  committed  he  can  only 
be  held  liable  for  his  negligence."^''' 
to  furnish   t(j   tlie  company   the      appeared   against   him   in   court, 


staf^e,  scenery,  and  stage-hands, 
dill  not  aher  his  hal)ility.  They 
were  still  his  servants.  HeUl 
hablc. 

*"*  Thomas  v.  Springer  (1909), 
VM  \.  1).  (X.  Y.)  040;  119  \.  Y. 
Supp.  400.  .Mthough  the  tiieatre 
proprietor  retained  pos.session  ami 
control  of  the  house  and  sold 
the  tickets  of  admission  he  was 
held  not  estopix'tl  from  denying 
that  the  employes  of  the  theatri- 
cal company  were  his  .servants. 

^"'' Kpstein  v.  Gordon  (1909), 
114  N.  Y.  Supp.  438.  The  usher 
of  a  theatre  took  hold  of  plaintilT's 
coat,  '  called  him  vile  names, 
struck    him,    arrested    him,    and 


where  plaintiff  was  discharged. 
There  wa.s  no  justification. 

Held  that  the  question  pre- 
sented for  the  jury  was  whether 
the  usher  was  acting  within  the 
scojx)  of  his  duty. 

"It  is  true  that  there  Ls  no 
proof  tending  to  show  that  the 
defendants,  (the  le.ssees)  or  either 
of  them,  in  any  way  ijei-sonally 
participated  in  the  misconduct 
complained  of,  and  neither  of 
them  can  be  held  liable  as  joint 
tort-feji.sors;  but  this  fad  does 
not  relieve  them  from  their  liability 
as  employers  of  the  »*7/rr." 

'"•  Faltison  v.  llammerstein 
(1896),  17  Misc.  (X.  Y.)  375;  39 


336 


THE    LAW   OF  MOTION   PICTURES 


N.  Y.  Supp.  1039.  "The  man- 
ager of  a  theatre,  in  the  absence 
of  a  special  agreement,  is  not, 
unUke  an  innkeeper  and  common 
carrier  of  goods,  upon  which 
classes  the  common  law,  from 
motives  of  public  policy  then 
prevailing  imposed  an  extraor- 
dinary liability,  an  insurer  of 
his  patron's  property  though  the 
property'  may  consist  of  apparel 
such  as  is  necessarily  or  usually 
worn  by  the  patrons  and  laid 
aside  by  them  while  attending 
the  play.  Hisliability  is,at  most, 
that  of  every  person  except  inn- 
keepers and  common  carriers  of 
goods." 

It  was  also  held  that  the  burden 
was  on  the  plaintiff  to  show  neg- 
ligence on  the  part  of  the  de- 
fendant. 

See  generally  on  this  proposi- 
tion the  following  non-theatrical 
cases:  Barnes  v.  Stem  Bros. 
(1915),   89   Misc.    (X.    Y.)    385; 


151  N.  Y.  Supp.  887;  Wentworth 
v.  Riggs  (1914),  159  A.  D.  (N.  Y.) 
899;  143  N.  Y.  Supp.  955;  Mc- 
Allister V.  Simon  (1899),  27  Misc. 
(N.  Y.)  214;  57  N.  Y.  Supp.  733; 
Wamser  v.  Browning  King  (1907), 
187  N.  Y.  87;  79  N.  E.  861;  Bun- 
mll  v.  Stern  (1890),  122  N.  Y. 
539;  25  N.  E.  910;  Woodruff  v. 
Painter  (1892),  150  Pa.  91;  24 
Atl.  621;  Bradncr  v.  Mullen 
(1899),  27  Misc.  (N.  Y.)  479; 
59  N.  Y.  Supp.  178;  Appleton  v. 
Welch  (1897),  20  Misc.  (N.  Y.) 
343;  45  N.  Y.  Supp.  751;  Buttman 
v.  Dennett  (1894),  9  Misc.  (N.  Y.) 
462;  30  N.  Y.  Supp.  247;  Bird  v. 
Everhard  (1893),  4  Misc.  (N.  Y.) 
104;  23  N.  Y.  Supp.  1008;  Del- 
mour  V.  Forsythe  (1911),  128  N.  Y. 
Supp.  649;  Montgomery  v.  Ladj- 
ing  (1899),  30  Misc.  (N.  Y.)  92; 
61  N.  Y.  Supp.  840;  Poioers  v. 
O'Neill  (1895),  89  Hun  (N.  Y.), 
129;34N.  Y.  Supp.  1007. 


CHAPTKH  VTIT 

THE    PUBLIC    (continued) 

License 

Sec.  lUo.  Wliat    is    "Motion    picture,"    "Theatrical    performance," 
"Theatre." 

106.  Necessity  for  Hcensc. 

107.  Power  to  license  discrctioiiary — Revocation. 
lOS.  Extent  of  discretionary  power. 

109.  Right  to  license  on  condition. 

Section  105. — What  is  "  Motion  picture,"  **  Theatrical 
performance,"  "  Theatre." 
Just  whut  constitutes  each  particular  form  of  theatrical 
entertainment  cannot  be  stated  with  any  degree  of  finality. 
Even  as  between  the  several  kinds  of  pictures,  such  as 
motion-pictures  and  stereopticons,  the  statutes  of  some 
states  have  differentiated.'  And  it  has  boon  a  mooted 
question  whether  a  motion  picture  exhiijition  given  in 
conjunction  with  some  other  business  comes  within  the 
letter  and  spirit  of  statutes  regulating  motion  i)ictures 
generally. - 

^  Block     V.     City     of     Chirngn  ■  Boisseau    v.    Scula    Am.    Co. 

(l!)0()),239Ill.251;S7X.K.  1011.  (Can.)   (1013),  22  Can.  Cr.  Ca.s. 

An  ordinance  which  referred  only  .'Jl ;  Edward  v.  McClcUan  (VM)), 

to    motion-picture    licen.^es,    and  US    X.    V.    Supp.    ISl;    ll'eusN 

not    to    stereopticon    exhibitions  blalt  v.  Bingham  (190S),  5S  Misc. 

was  held  constitutional.  (N.  Y.)  328;   109  X.  Y.  Supp. 

337 


338  THE    LAW   OF   MOTION    PICTURES 

However,  there  is  no  longer  any  uncertainty  as  to  the 
status  of  such  an  entertainment.  In  the  early  case  of 
Edison  V.  Lubin  ^  a  motion  picture  was  held  to  be  for 
purposes  of  copyright  merely  a  series  of  photographs. 
Places  where  they  were  exhibited  were  not  required  to  be 
licensed.  Later  on,  with  their  development  and  growing 
popularity,  licensing  restrictions  became  the  rule  in  all 
the  states.  Harper  v.  Kalem,^  which  for  the  purpose  of 
copyright  stamped  the  exhibition  as  a  dramatic  enter- 
tainment, brought  it  within  the  then  existing  statutes 
regulating  theatrical  entertainments,  and  really  made  it 
unnecessary  and  superfluous  to  pass  special  restrictions. 

A  motion  picture  is  to  all  intents  and  purposes  a  theat- 
rical or  dramatic  exhibition,^  and  decisions  which  seek 
to  draw  a  distinction  between  it  and  the  spoken  drama 
are  compelled  to  resort  to  quibbling.''  X  statute  which 
requires  a  license  for  a  dramatic  exhibition  or  entertain- 
ment requires  a  license,  unless  expressly  excepted,  for  a 
motion  picture. 

545;  Economopoulos  v.  Bingham  forbids  all  performances  of  any 

(1907),    109    N.    Y.    Supp.    728;  character   in   a   place   of   public 

CotinnonweaUh  v.   Spiers   (1912),  amusement  on  Sunda3\    That  the 

51  Pa.  Super,  (,'t.  59.  phrase   "any   other  entertainment 

^Edison  V.  Lubin  (1903),  122  of  the   stage"   is    broad    enough 

Fed.  (C.  C.  A.)  240.  to    include    any    public    e.xhibi- 

*  Kalem  v.  Harper  (1911),  222  tion  whatsoever  given   upon  the 

U.  S.  55;  32  Sup.  Ct.  20.  stage. 

■■'Matter  of  City  nj  New   York  '■  Kd wards  v.  McClellan  (1909), 

{re  Ilammcrslein)  (1907),  57  Misc.  118  N.  Y.  Supp.  181.    It  was  held 

(X.   Y.)    52;    108   N.    Y.   Supp.  that  a  motion-picture  exhibition 

197.     field  that  Section  MSI  of  was  not  a  "pubHc  show"  within 

the  Greater  New  York  Ciiarter  tiie  meaning  of  a  Sunday  statute. 


WHAT    I>    "MOTION     I'KTLKE,       ETC. 


S6'J 


Tho  courts  have  been  greatly  divi(ied  on  what  consti- 
tutes a  "theatrical  performance,"  and  have  included  in 
that  category  and  demanded  a  Hcense  of  an  orchestral 
concert  given  on  a  raised  dais,"  a  performance  consisting 
of  the  singing  of  a  song  at  a  piano, ^  a  pantomime,'-*  motion 
pictures  shown  in  an  ice-cream  saloon,'"  motion  pictures 


'  Mayor  etc.  of  Xeic  York  City 
V.  Eden  Mmee  (1886),  102  X.  V. 
593;  8  X.  E.  40. 

»  RiuiHell  V.  Smith  (Eng.)  (1848), 
12  g.  B.  217;  17  L.  J.  Q.  li.  22.-); 
12  Jur.  723.  The  singiiiK  of  a 
song  at  a  piano  although  without 
scenery  or  co.stunic  wa.s  held  to 
be  a  "dramatic  jiieco." 

It  was  also  held  tiiat  the  hall 
in  which  the  song  was  sung  was  a 
place  of  dramatic  entertainment. 
Under  this  decision  semble  that 
any  place  where  a  dramatic  piece 
is  performed  is  a  place  of  dramatic 
entertainment. 

See  al.so:  CUirk  v.  Bishop  (Eng.) 
(lS72),2oL.  T.  908. 

»  Day  V.  Simpson  (Eng.)  (1865), 
18  C.  B.  X.  S.  680.  A  play  in 
which  hut  two  persons  apjx'ar  on 
the  stage  and  the  reflection  of 
other  pei-sons  is  thrown  uiK)n  a 
mirror  in  back  of  the  stage  in 
such  a  manner  as  to  deceive  the 
audience  in  believing  them  to 
actually  ap|K?ar  is  an  "enter- 
tainment of  the  stage"  and  the 
owner  of  the  house,  who  had  pro- 


cured no  license  for  the  .same,  was 
held  guilty. 

'"  Weislblall  v.  Bingham  (1908), 
58  Misc.  (X.  Y.)  328;  109  X.  Y. 
Supp.  545.  Plaintiff  operated 
an  ice-cream  salocjn  and  to  at- 
tract customers  gave  moving 
picture  exhibitions.  Xo  admis- 
sion fee  was  chargetl.  Held  that 
although  no  admi.ssion  fee  was 
charged  it  was  a  public  perform- 
ance, a  "common  show"  within 
the  contemplation  of  the  statute 
and  an  illegal  public  jxirformance 
unless  the  license  issued  to  "com- 
mon shows"  was  secured. 

To  the  same  effect  see:  Econo- 
mopoulos  V.  Bingham  (1907),  109 
X.  Y.  Supp.  728. 

"I  do  not  think  the  charging 
o(  an  admission  fee  or  the  fail- 
ure to  charge  a  fee  changes  the 
situation:  but  if  it  lias  any  l)ear- 
ing,  the  affidavits  .sliow  that 
the  plaintiff  collects  admission 
by  an  extra  charge  on  soda 
water  and  the  like  .sold  to  |K'ople 
who  arc  jX'nnittetl  to  view  the  ex- 
liibition  and  listen  to  the  music." 


THE    LAW   OF   MOTION   PICTURES 


fitted  up  with  a  vaudeville  stage, ^^  a  circus/-  an  opera/^ 
horse-racing/'*  a  medical  museum/^  a  booth/^  a  bowling 
alley/'  and  an  aquarium. ^^ 

is  distinguished  from  the  spoken 
drama,  but  the  fundamental  and 
really  essential  element  of  both 
is  action." 

^*  Webber  v.  Chicago  (1892), 
50  111.  App.  110.  "There  is  no 
more  uncertainty  as  to  horse 
racing  in  Garfield  Park  being  an 
exhibition  within  an  enclosure 
than  as  to  seUing  whiskey  in  a 
bar  room  being  such  a  business 
as  requires  a  dram  shop  license." 

^^  People  V.  Kennedy  (1913), 
141  N.  W.  (Mich.)  887. 

J6  Fredericks  v.  Payne  (Eng.) 
(1862) ,  1  H.  and  C.  584.  A  booth 
wliich  has  been  erected  tempo- 
rarily is  a  "place"  within  the 
meaning  of  Section  Eleven  of  the 
Theatres  Act  of  1843.  [See  Tarling 
V.  Fredericks  (Eng.)  (lcS73),  21 
W.  R.  785  for  that  section.] 

See  also:  li>u'<scll  v.  Smith  (Eng.) 
(1848),  12  Q.  B.  217;  17  L.  J.  Q. 
B.  225;  12  Jur.  723;  Clark  v. 
Bishop  (iMig.)  (1S72),25  L.  T.908. 

"  Johnson  v.  Ilnmphren  Pop- 
Corn  Co.  (1902),  24  Ohio  C\r.  Ct. 
135.  "Places  of  accommodation 
and  anuisemeiit  "  include  a  bowl- 


See  also:  Herbert  v.  Shanley, 
242  U.  S.  591;  37  Sup.  Ct.  232. 

"  Commonwealth  v.  Donnelly 
(1912),  51  Pa.  Super.  Ct.  61. 
Where  the  building  is  fitted  up 
with  a  stage  and  other  accesso- 
ries for  theatrical  productions, 
and  where  moving  picture  exhi- 
bitions are  alternated  with  per- 
formances of  artists  and  vocal 
entertainment,  the  theatre  is 
subject  to  the  tax  required  of 
theatrical   entertainments. 

''- State  V.  Morris  (1910),  76 
Atl.  (Del.)  479.  Under  a  statute 
providing  that  no  person  shall 
be  engaged  in  exhibiting  circuses 
and  further  that  all  Ijuildings 
wherein  "theatrical"  perform- 
ances were  given  shall  be  deemed 
a  circus  within  the  meaning  of  the 
statute  it  was  hold  that  tlie  giving 
of  motion  picture  exhiljitions  con- 
stituted a  theatrical  performance. 

"Be«  V.  Mahn  (1888),  121 
Pa.  St.  225;  15  Atl.  523.  "The 
f)IX'ra  is  essentially  and  in  every 
point  of  view  a  dramatic  com- 
l)()sition  and  its  representations 
a  dramatic  exhibition.  ...  It 
may  bo  conceded  that  music  is 
in  some  sense  an  (wsoiitial  elemont 
in  the  o|X!ra;  in  thi.s  respect  it 


mg-alloy. 

'"  Wartier  v.  Brighton  A(iiuiriuni 
(iMig.)    (1875),    L.    R.    10   Exch. 


WHAT    IS    "MOTION    IMCTrUK,       KTC 


341 


On  the  otlior  haiul,  u  cabaret  "was  held  not  to  he  an 
exhibition.''-'  In  view  of  the  decision  of  the  United  States 
Supreme  Court  in  Herbert  v.  Shanley  -"  holding  that  the 
public  performances  of  songs  in  cabarets  and  hotels  are 
RJvon   for   ''profit,"   the  Martin   case  will   prol)ably   not 


291;  Tenij  v.  Jiriglitoit  A(iiuiriuin 

(EiiR.)  (i.s7-)),L.  \{.  \oiin.:m. 

On  the  <iucs(ion  whether  the 
proprietor  of  a  ><katinq  rink  xchcrc 
music  is  pUvfcil  is  liable  if  he  doe.f 
rwl  hare  a  liccn~^e,  sec:  Reg  v. 
Titcker  (Kng.)  (1S77),  L.  R.  2 
Q.  B.  D.  417. 

Sec  also:  People  \  .  King  (ISSfi), 
42  Hun  (X.  Y.),  ISO;  alTM  110  X. 
Y.  41S;  IS  N.  E.  245. 

See  also  a.?  to  whether  skating  is 
dancing,  ami  whether  the  public 
nrnst  adunlhj  participate.  Marks 
V.  lien  jam  in  (Kng.)  (1H,39),  5 
M.  &  W.  r)()5. 

^^  People  V.  Martin  (1912),  137 
N.  Y.  Supp.  077.  A  "oaharot," 
ronsistinjf  of  (lancing  and  sinp;inp;, 
arconipaniod  l)y  inlisic  from  an 
orchestra,  was  held  not  to  he  a 
"public  exhibition"  witliin  th(; 
eontemplation  of  a  statute  niakinf? 
it  a  misdemeanor  to  ronduet  a 
pul)lie  exhiliition  without  a  li- 
eense,  ui)on  the  Kround  tliat  the 
entertainment  constituted  a  gra- 
tuitous contribution  by  the  man- 
agement, no  admission  having; 
been  charged. 


The  court  then  cites  the  fol- 
lowing cjuscs  in  supjxjrt  of  this 
projxjsition :  Mayor  etc.  of  New 
York  City  v.  Eden  Muaee  (1886), 
102  N.  Y.  593;  8  N.  E.  40;  People 
V.  Campbell  (HKX)),  51  A.  D.  (X. 
Y.)  565;  65  X.  Y.  Supp.  114; 
People  V.  Royal  (1898),  23  A.  D. 
(X.  Y.)  258;  48  X.  Y.  Supp.  742; 
Society  V.  NeuJibach  (1883),  16 
Wkly.  Dig.  (X.  Y.)  349;  Matter  of 
Allen  (1901),  34  Misc.  (X.  Y.) 
698;  70  X.  Y.  Supp.  1017. 

See  People  v.  Wacke  (1912), 
77  Mi.sc.  (X.  Y.)  196;  137  N.  Y. 
Supp.  652  where  motion  pictures 
were  shown  in  a  hotel  and  People 
V.  Keller  (1916),  96  Misc.  (N.  Y.) 
32S;  where  a  cabaret  jx^rform- 
ance  wa.s  given. 

See  also:  Brcarley  v.  Morley 
(Eng.)  (1899),  2  Q.  B.  121;  where 
a  public  house  was  held  not  to 
retiuire  a  license  where  the  piano 
was  played  by  guests. 

^Herbert  v.  Shanley  (1917), 
242  U.  S.  591;  37  Sup.  Ct.  232; 
Church  V.  milimd  (1917),  242 
U.  S.  591;37Sup.  C't.232. 


342 


THE    LAW   OF   MOTION   PICTURES 


stand.'^  A  motion  picture  theatre  having  no  stage,  was 
likewise  held  exempt  from  obtaining  a  license;  "  so  too, 
a  saloon  having  a  piano  in  a  balcony,-^  exhibitions  given 
to    aid    the   sale   of    a   book,-^    a   private    subscription 


21  See  in  this  connection:  Greg- 
ory V.  Tavernor  (Eng.)  (1833),  6 
C.  &  P.  280;  Hall  v.  Green  (Eng.) 
(1853),  9  Exch.  247;  Quaglieni  v. 
Matthews  (Eng.)  (1865),  6  B.  & 
S.  474;  Sijers  v.  Conquest  (Eng.) 
(1873),  37  J.  P.  342;  Fay  v.  Big- 
nell  (Eng.)  (1883),  Cab.  &  El.  112. 

"  Commonwealth  v.  Spiers 
(1912),  51  Pa.  Super.  Ct.  59.  A 
moving  picture  theatre  cannot 
be  taxed  as  a  theatrical  or  oper- 
atic entertainment  where  it  ap- 
pears that  the  place  is  not 
equipped  with  any  stage  or  facil- 
ities for  vaudeville,  and  the 
entertainment  consists  only  of 
moving  pictures  and  illustrated 
songs. 

But  where  the  moving  picture 
exhibitions  are  alternated  with 
performances  by  artists  and  the 
building  is  fitted  up  with  a  stage 
and  other  theatrical  accessories 
the  building  comes  under  tlie 
Act  providing  for  the-  licensing 
of  theatres  and  payment  of  tax 
rerjuired.  Commonwealth  v.  Don- 
elbj  (1912),  51  Pa.  Super.  Ct.  61. 

■"  I'copk  V.  Campbdl  (I9()0), 
51  A.  D.  (N.  Y.)  565;  65  N.  Y. 


Supp.  114.  Defendant  was  the 
proprietor  of  a  liquor  saloon  and 
had  paid  the  tax  which  author- 
ized him  to  sell  liquor,  but  had 
no  concert  license.  On  a  balcony 
was  a  piano  which  was  played 
during  the  evening.  Held  that 
this  did  not  constitute  a  theatri- 
cal performance. 

Brearley  v.  Morley  (Eng.) 
(1899),  2  Q.  B.  121.  A  music 
license  was  not  required  by  a 
licensed  victualler  who  kept  a 
piano  in  his  smoking  room  for 
his  customers  to  play  upon. 

^'People  V.  Roijni  (1898),  23 
A.  D.  (N.  Y.)  258;  48  N.  Y. 
Supp.  742.  Defendant  leased 
a  store  and  had  an  assistant  ex- 
hibit various  gambling  devices, 
all  being  done  to  induce  the  sale 
of  his  book  on  gambling.  Held 
that  as  the  sale  of  the  Iwok  was 
perfectly  lawful,  he  had  a  right 
to   give  such   exhibitions. 

"As  long  as  he  conducts  such 
a  business,  using  his  exhibitions, 
illustrations  and  explanations  to 
accomplish  tiiat  end,  we  think  he 
offends  no  law  and  does  not 
violate  this  ordinance." 


WHAT    IS    "MO'l'ION    i'lCTrUE,       1:T< 


343 


dance,-''  where  music  and  dancinp  were  a  secondary  fea- 
ture,-'^ an  amateur  dranuitic  ix-rfonnance  -"  and  public  con- 
certs given  by  a  music  school.-**  An  exhibition  of  actors 
and  motion  pictures  did  not  recjuire  a  motion  picture  li- 


"/M/.s-  V.  linnjhiU  (Eiij?.) 
(1788),  2  Ksp.  722.  Where  :i 
daiioiiiK  master  invited  jx-ople  to 
his  house  for  diuices  by  subscri|>- 
tion.  11  lid  that  as  the  public 
were  not  admitted  indiscrimi- 
nately, no  dance  license  was  re- 
(juired. 

See  also:  Marks  v.  Benjamin 
(Eng.)  (1&39),5M.  &  W.  565. 

But  see  Archer  v.  Willingrice 
(Eng.)  (1802), 4  Esp.  185.  Where 
though  the  admi.ssion  fee  for  the 
dancing  was  paid  to  one  who 
taught  the  dance.s  and  not  to  the 
proprietor,  he  was  recjuired  never- 
theless to  obtain  a  licen.se. 

See  also:  Shult  v.  Lewis  (Eng.) 
(1804),  5  E.sp.  128;  Gregory  v. 
Tujfs  (Eng.)  (18:33),  6  C.  &  P. 
271;  (hrgonj  v.  Tavernnr  (Eng.) 
(1833),  or.  k  P.  280. 

^  Giiaglieni  v.  Matlheivs  (Eng.) , 
.34  L.  J.  M.  C.  116.  Where  the 
music  and  dancing  are  not  tlie 
chief  business  of  the  house  but 
merely  a  .secondary  feature,  a 
license  will  not  be  required. 

Hut  see  Ilnll  v.  Green  (Eng.) 
(18.-)3),  0  Ex.  247. 

^Oellers  v.  Horn  (1807),  3  Pa. 
Sup.     Ct.     537.       Performances 


given  by  amateurs  by  an  organi- 
zation of  university  undergradu- 
ates, are  not  theatrical  iM'rform- 
ances  within  the  purview  of  the 
statute,  and  no  license  need  be 
procured. 

Duck  v.  Bates  (Eng.)  (1884), 
13  Q.  B.  D.  843.  A  ix-rformance 
given  by  an  amateur  ilramatic 
society  in  a  hospital,  admis- 
sion to  whicii  wa.s  by  free  ticket 
issued  to  friends  of  the  jx'r- 
formers,  wa.s  held  not  to  be  a 
public   jx;rformance. 

-'*  Mark  ham  v.  Southern  Con- 
ser valor  1/  of  Mn.sic  (1902),  130 
N.  (\  276;  41  8.  E.  531.  A  school 
for  musical  instruction  owned  a 
hall  wherein  as  an  incident  of  its 
instruction,  it  gave  concerts. 
Distinguished  si)ecialists  were  con- 
tracted with  to  give  performances 
to  which  the  pupils  and  general 
public  were  admit tetl  ui)on  the 
|)aynient  of  an  admission  fee. 
The  concerts  were  run  at  a  lo.<s, 
the  purix).se  of  selling  tickets 
of  admission  being  solely  t*) 
rcMluce  iti  part  the  loss  sustaiiunl 
by  tlie  institution.  Held  that  the 
school  was  not  liable  for  an  opera 
house  ta.\. 


344 


THE    LAW    OF   MOTION    PICTURES 


cense, ^^  and  a  license  given  for  musical  concerts  or  dances 

did  not  cover  or  authorize  the  license  to  give  stage  plays.  ^° 

A    theatre    is    an    institution    sui    generis.       It    is 

not    a     nuisance,^^     nor    a     bawdy    house,^-     nor    a 


^^  Boisseau  v.  Scola  Amiise. 
Co.  (Can.)  (1913),  22  Can.  Cr. 
Cas.  31;  Statute  3  Geo.  V.  (Que.), 
ch.  36  (R.  S,  Q.  1301d)  (1913), 
construed.  Held  that  a  theatre 
at  which  a  number  of  actors  ap- 
peared was  not  subject  to  the 
provincial  tax  placed  upon  mov- 
ing picture  halls  although  the 
exhibition  of  moving  pictures 
constituted  almost  half  of  the 
performance. 
f  30  Lemj  V.  Yates  (Eng.)  .(1838) ,  8 
A.  &  E.  129;  3  Nev.  &  P.  (Q.  B.) 
249. 

See  generally  the  following  Eng- 
lish cases:  Fredericks  v.  Howie 
(1862),  1  H.  &  C.  381;  Shelley  v. 
Bethell  (1883),  12  Q.  B.  D.  11; 
Marks  v.  Benjamin  (1839),  5  M. 
&  W.  565;  R.  v.  Strugnell  (1865), 
L.  R.  1  Q.  B.  93;  Day  v.  Simpson 
(1865),  18  C.  B.  (N.  S.)  680;  Cal- 
crnfl  v.  West  (1845),  2  Jo.  &  Lat. 
123;  Gregory  v.  TaJTs  (1833),  6 
C.  &  P.  271 ;  Bellis  v.  Bealc  ( 1797) , 
2  Esp.  592;  Rmjal  Albert  Hall  v. 
London  Council  (1911 ) ,  27  T.  L.  R. 
362. 

"  ('ity  of  fmlinnapolis  v.  Miller 
(1907),   168   Ind.   2X5;  SO   X.   E. 


626;  City  of  Chicago  v.  Weber 
(1910),  248  111.  304;  92  N.  E.  859; 
Ex  parte  Whitwell  (1893),  98  Cal. 
73;  32  Pac.  870;  Barber  v.  Penley 
(Eng.)  (1893),  2  Ch.  447;  Bellamy 
V.  Wells  (Eng.)  (1890),  63  L.  T. 
N.  S.  635;  1  Hawkins  P.  C.  (8th 
Ed.)  693. 

For  detailed  discussion  of  this 
subject  see  Section  80. 

'^Ex  Parte  Bell  (1893),  32 
Tex.  Crim.  App.  308.  The  City 
charter  of  Houston  authorized 
the  City  to  pass  ordinances 
prohibiting  and  punishing  keep- 
ers and  inmates  of  bawdy  houses 
and  variety  shows.  In  pursuance 
thereof  the  city  passed  an  ordi- 
nance declaring  that  any  variety 
theatre  or  show  where  there  was 
music,  dancing  or  singing  and 
where  intoxicating  liquors  were 
sold  to  the  patrons,  should  be 
regarded  as  a  bawdy  house. 
Ordinance  hold  invalid. 

But  sec:  R.  v.  Wolfe  (Eng.) 
(1849),  13  J.  P.  428;  Green  v. 
Botheroyd  (I'lng.)  (1828),  3  C.  <fe 
P.  471.  Under  the  Di.sorderly 
Houses  Act  of  1751,  (25  Geo. 
2,  ch.  36)  s.  2,  :i  music  or  dance 


NECESSITY    FOIl    LICENSE 


•m: 


dwcllinR-house,"  nor  :i   pUico  where  valuable  goods  arc 
stored." 

It  has  also  been  held  that  the  tonii  "theatre"  in  a 
statute  with  respect  to  the  securing  of  licenses  for  the 
giving  of  theatrical  performances,  referred  not  to  the 
building  but  the  performance.^'' 

Section  106.— Necessity  for  license. 

It  is  well  settled  that  statutes  reciuiring  the  securing  of 
a  license  as  a  condition  to  build  or  operate  a  theatre, 
motion  picture  exhibition  or  other  form  of  public  enter- 
tainment are  constitutional.^^    And  the  statute  may  im- 


luill  wliicli  (lid  not  obtain  :i  li- 
cense was  considered  a  disorderly 
house. 

See  also:  Patrick  v.  Wood  (Eng.) 
(190.')),  4  Adam,  648. 

^^PnuUon  V.  Keith  (1901), 
2.3  R.  I.  104;  49  Atl.  O.'}.'). 

"Let!  V.  Slate  (1876),  56  CJa. 
478.  "The  word  theatre  does 
not,  ex  vi  termini  imiwrt  that 
it  is  a  place  where  valuable 
goods  are  stored."  The  court 
then  held  that  an  indictment 
which  did  not  allege  that  valu- 
able goods  were  contained  therein 
was  bad. 

»» Comnionioealth  v.  Kcelcr 
(1850),  3  Pa.  Dist.  1.5S. 

'"  Cotnmonircnlth  w  Mc<lnnn 
(1913), 'Ji:i  Mass.  213;  KM)  X.  K. 
355.     I'pliolds  the  statutes  regu- 


lating tlie  licensing  of  motion- 
picture  theatres. 

"The  Liberty  of  the  Press" 
does  not  apply  to  the  oral  pres- 
entation of  a  play  in  a  theatre. 

Laurelle  v.  kiush  (1912),  17 
Cal.  App.  409;  119  Pac.  9.53. 
Upholds  the  legality  of  an  or- 
dinance regulating  the  licensing 
of    motion-picture    theatres. 

Manmt  v.  Stale  (1SS7),  45 
Ohio  St.  6;J;  12  X.  !•:.  463.  The 
state  has  the  right  to  regulate 
private  busines.ses  and  require 
their  licensing. 

State  V.  ScaJlTer  (1905),  95 
Minn.  311;  104  N.  W.  139. 

Wallick  V.  StKiety  (1876),  67 
X.  Y.  23.  Plaintiff  suwl  to  re- 
strain the  defendant  from  bring- 
ing   an    action    against    him    to 


346 


THE    LAW   OF   MOTION   PICTURES 


pose  penalties  for  the  giving 
obtaining  such  hcense.^' 

recover  penalties  and  close  his 
theatre  because  he,  plaintiff,  had 
not  secured  a  license  as  required 
by  law.  Plaintiff  contended  that 
such    law   was    unconstitutional. 

Held  that  he  could  not  maintain 
an  action  of  this  kind. 

See  also:  Liquor  Tax  cases 
(1866),  5  Wall.  462. 

On  the  right  to  regulate  dance 
halls  and  the  form  such  regulation 
may  take  see  Mehlos  v.  Citij  of 
Milwaukee  (1914),  156  Wis.  591; 
148  N.  W.  882,  and  cases  therein 
cited.  State  v.  Rosenfield  (1910), 
111  Minn.  301;  126  N.  W.  1068; 
People  ex  rel.  Ritter  v.  Wallace 
(1914),  160  A.  D.  (N.  Y.)  787; 
145  N.  Y.  Supp.  1041. 

Two  licenses  for  the  same  act 
viay  he  required.  See:  Common- 
wealth V.  McGann  (1913),  213 
Mass.  213;  100  N.  E.  355.  It 
was  held  that  a  statute  was  valid 
which  required  one  license  issued 
by  the  Chief  of  Police  for  the 
safety  of  tlic  public,  and  one 
license  issued  by  the  Mayor  to 
protect  the  morals  of  the  pul)li('. 
The  business  may  be  permitted 
or  licensed  in  pnrt  and  j)rohibitfHl 
in  part. 

^'  ('(ttnm(»nrc(iU}i  v.  Tin'Irht  II 
(1849),  58  Ma.ss.  74.     Defendant 


of  performances  without  first 

was  found  guilty  of  a  crime  under 
the  statute,  for  promoting  and 
setting  up  a  theatrical  exhibition 
without  first  securing  a  license 
as  required. 

Tarling  v.  Fredericks  (Eng.) 
(1873),  21  W.  R.  785.  Under 
Section  11  of  the  Theatres  Act 
of  1843  it  is  provided:  "And  be 
it  enacted  that  everj^  person  who 
for  hire  sliall  act  or  present  or 
cause,  permit  or  suffer  to  be 
acted  or  presented  any  part  in 
any  stage-play,  in  any  place  not 
being  a  patent  theatre,  or  duly 
licensed  as  a  theatre  shall  for- 
feit such  sum  as  shall  be  awarded 
by  the  court  in  which,  or  the 
justices  by  whom,  he  shall  be 
convicted,  not  exceeding  ten 
pounds  for  every  day  on  which 
he  shall  so  offend." 

Mr.  Justice  Blackburn  said 
tliat  this  section  was  enacted 
for  the  purpose  of  preventing 
anyone  from  acting  stage  plays 
for  hire  anywhere  where  there 
was    no    license. 

On  the  qiu-stion  whether  a  munic- 
ipal corporation  may  he  estopped 
from  maintaining  an  action  for  a 
jxnalti/  for  giving  theatrical  ex- 
hil)ilions  wilhoNl  a  licence  where  it 
has  retained  moneys  paid  to  it  sub- 


NECERSITV    lOIt    I.irENSE  '.V\7 

Tho  question  has  occasionally  arisen  whether  a  par- 
ticular organization  was  re(iuired  to  secure  a  license. 

A  charter  granted  to  a  group  of  men,  under  which  the 
corporation  was  given  the  riglit  (o  give  pui)li('  j)erforni- 
ances  of  stage  plays  in  its  building  did  not  relieve  the 
cor])oration  of  its  obligation  to  obtain  a  license  before 
giving  such  performances. ^'^ 

In  like  manner  it  has  been  held  that  a  charital)le  or- 
ganization was  obligated  to  obtain  a  license  and  pay  the 
required  tax  unless  specifically  exempted  by  statute;  ^^ 
and  generally  it  may  be  said  that  one  vested  with  the 
licensing  i:)t)wer  may  not  except  a  s]>ecial  i:)erson  or  organ- 
ization from  either  obtaining  a  license  or  paying  the  re- 
quired tax,  unless  the  statute  specifically  provides  for 
such  exemption. 

The  license  itself  need  not  be  in  writing.^" 

seqtiently    «.s    a    license   fee,    sec  Shelley  w.  Bethetl  (Eng.)  (ISS^l), 

Mnhnnoy  City  v.  Ilersker  (1911),  12  Q.   B.   D.    11.     A  defendant 

231  Pa.  :n\);  SO  Atl.  5.39.  who  hiid  a  private  house  fitted 

^'^  Royal  Alhcrt  Hall  v.  London.  up  xs  a  private  theatre  turntH.1 
Co.  Council  (Eng.)  (1911),  104  it  over  to  another.  The  latter 
L.  T.  894;  7.5  J.  P.  337;  9  L.  CJ.  R.  advertised  performanees  therein 
620;  27  T.  L.  R.  362.  Altliounh  lor  the  benefit  of  a  school  for 
the  corporation  of  Albert  Hall  has  Dramatic  Art.  Admission  \v:is 
full  powers  under  its  charter  by  ticket  which  cost  i'l  Is. 
to  give  public  performances  of  Held  that  inasmucli  a.s  the 
staj^e  play.s  in  its  buildings,  such  owner  of  the  house  had  not  pro- 
powers  are  not  letters  patent  cured  a  license  he  was  guilty, 
to  give  stage  plays,  and  the  cor-  irrcs|icctive  of  the  fact  that  tiie 
poration  must  ol)tain  a  theatre  performance  wa.s  for  charity, 
license.  construing   Section   Two   of   the 

'» City    of   Mohih'    V.    Kicrmn  Theatres  Act  of  1S43. 

(1911),  54  So.  (Ala.)  102.  *^CUy    of   Boslon    v.    Schaffer 


348 


THE    LAW    OF   MOTION   PICTURES 


There  is  some  conflict  as  to  whether  a  hcense  is  required 
for  an  entertainment  for  which  no  direct  admission  fee 
is  charged.  In  New  York  a  cabaret  was  held  exempted 
from  procuring  a  Hcense.  ^^  In  England,  however,  the  con- 
trary seems  to  be  the  rule."-  And  Herbert  v.  Shanley,^^ 
decided  by  the  United  States  Supreme  Court,  subsequent 
to  the  New  York  decision  above  mentioned,  by  holding 
that  a  performance  given  at  a  restaurant  to  which  no 
direct  admission  fee  was  charged,  was  a  public  perform- 
ance for  profit,  has  made  the  English  rule,  the  American 
doctrine  in  this  respect. 


(1830),  9  Pick.  (Mass.)  415.  A 
license  exacted  by  the  mayor  and 
aldermen  need  not  be  in  writing. 

"No  formal  written  license 
was  given  to  the  defendants, 
but  that  is  not  material;  for  there 
was  a  vote  of  the  city  that  the 
hcense  to  the  theatre  should  be 
renewed,  on  the  pro[)rictors  giv- 
ing bond  and  paying  .11000 
a  year,  and  the  defendants  have 
proceeded   as   under   a  license." 

''People  V.  MarUn  (1912),  137 
N.  Y.  Supp.  677;  People  v.  Keller 
(1916),  96  Misc.  (N.  Y.)  92; 
161  N.  Y.  Supp.  132.  But  .see: 
Weislblatt  v.  liingimm  (190S), 
FiH  Misc.  (N.  Y.)  32S;  109  N.  Y. 
Supp.  .54.');  Economopoulofi  v. 
liinijlmm  (1907),  109  N.  Y.  Supp. 
728. 

*"■  Farrulalr  v.  liniiihriilqv  (Kng.) 
(1S9S),  42  Sol.  Jo.  192;  Sarpu  v. 


Holland  (Eng.)  (1908),  99  L.  T. 
317;  WallY.  Tayler  (Eng.)  (1883), 
52  L.  J.  Q.  B.  558;  Gregonj  v. 
Tuffs  (Eng.)  (1833),  6  C.  &  P. 
271;  Archer  v.  Willingrice  (Eng.) 
(1802),  4  Esp.  186;  Trailing  v. 
Messenger  (Eng.)  (1867),  31  J.  P. 
423;  WiUiam.s  v.  Wright  (Eng.) 
(1897),  13  T.  L.  R.  551. 

"Herbert  v.  Shanlcy  (1917), 
242  U.  S.  591;  37  Sup.  Ct.  232. 

See  generally  as  to  defendant's 
scienter  and  the  manner  of  use  of 
the  premises  the  folhnving  Eiighsh 
cases:  Shelley  v.  Bcthcll  (l^ig.) 
(1883),  12  Q.  B.  D.  11;  Marks 
V.  Benjamin  (Eng.)  (1839),  5 
M.  &  W.  565;  Gregory  v.  Tuffs 
(Eng.)  (18.33),  6  C.  &  P.  271; 
Syers  v.  Conquest  (Eng.)  (1873), 
37  J.  P.  342;  R.  v.  Rosenthal  (Eng.) 
(1805),  .30  J.  P.  \0\;  R.  v.  Slriiy- 
nell  (Eng.)  (1865),  L.  R.  1  (i.  B. 


POWEK  TO   LICENSE   DISCRETIONARY  — REVOCATION      349 

Section  107. — Power  to  license  discretionary  Revoca- 
tion. 

The  power  to  license,  by  the  great  weight  of  authority, 
has  been  held  to  be  purely  diseretionary  in  the  ofhcial 
or  body  in  whom  it  is  vested,  even  though  such  power 
may  be  granted  or  revoked  "at  their  pleasure."  "  The 
courts  will  not  interfere  in  the  exercise  of  that  discretion, 
nor  substitute  their  judgment  in  place  of  the  hcensing 
body,  unless  that  discretion  is  abused.''' 

In  a  leading  case  the  New  York  Appellate  Division 
held  that  "The  cjuestion  which  we  have  here  presented 
therefore  is  whether  the  refusal  of  the  commissioner  to 
gi-ant  the  Hcense  is  a  'judicial  act.'  .  .  .  But  with  that 
determination  when  reached  the  court  has  no  right  to 
interfere.  In  other  words,  the  granting  of  licenses  is  re- 
ferred to  the  judgment  and  discretion  of  the  connnissioner, 
and  there  is  no  authority  in  any  particular  instance  for 


93;  Clarke  v.  Scnrlc  (Eiik-)  (179:^), 
1  Esp.  25;  Ikllus  v.  IkcUe  (En^.) 
(1797),  2  Esp.  592;  Rial  v.  Wil- 
son (EnR.)  (1895),  1  Q.  B.  315; 
}I  off  man  v.  Boml  (Eng.)  (1875), 
32  L.  T.  N.  S.  775;  Brown  v. 
Nugent  (Eng.)  (1872),  L.  R.  7 
Q.  B.  588;  Garrelt  v.  Messenga' 
(Eng.)  (1S07),  L.  R.  2  C.  &  P. 
5S;{;  liiyuui  v.  Uannwj  (Eng.) 
(1891),  2  Q.  B.  709. 

♦*  Commonu'callh  v.  Mdlann 
(1913),  213  Mass.  213;  100  N.  E. 
355. 

*^ People    ex   rel.   Cuniiaktij    v. 


Wurster  (1897),  14  A.  U.  (X.  Y.) 
5.">0;  43  N.  Y.  8upp.  1088.  The 
|X)Wor  granted  to  a  mayor  to 
i.-;.><ue  theatrical  hcen.ses  i.s  dis- 
cretionary' and  when  not  abused, 
will  not  1)0  interfered  with  l>y  the 
courts. 

See  also  cases  cited  in  Section 
lOS. 

/i*.  V.  Anhton,  ex  parte  Walker 
(1915)  (Eng.),  113  L.  T.  690;  79 
J.  P.  444.  Discu-sses  the  proposi- 
tion as  to  who  is  entitled  to  no- 
tice of  apix^al  from  the  refusal  to 
grant  a  music  liceu.-<e. 


350 


THE    LAW   OF   MOTION   PICTURES 


substituting  for  the  conclusion  which  he  may  reach  that 
of  the  court  ...  our  conclusion  being  that  the  power 
vested  in  the  police  commissioner  is  purely  discretionary 
and  one  not  reviewable  by  the  courts."  ^^ 

The  pohce  powers  of  the  state  to  grant  licenses  may  be 
delegated  to  subordinate  boards  and  commissions;  ^^  but 
the  delegation  must  be  express,  so  that  school  trustees 
may  not  overstep  their  authority  by  leasing  school  prop- 
erty for  motion  picture  exhibitions.^^ 

«  Matter  of  Armstrong  v.  Mur-      Atl.    (Md.)    227.     An   ordinance 


p%(1901),65A.  D.  (X.  Y.)  126; 
157  N.  Y.  Supp.  534. 

See  also:  Matter  of  Whitten 
(1913),152A.D.  (N.Y.)506;137 
N.  Y.  Supp.  360;  Matter  of  Simoiis 
V.  McGuire  (1912),  204  N.  Y. 
253;  97  N.  E.  526;  People  ex  rel. 
Schau  V.  McWilliams  (1906), 
185  N.  Y.  92;  77  N.  E.  785; 
People  ex  rel.  McNulty  v.  Max- 
well (1908),  123  A.  D.  (N.  Y.) 
591;  108  N.  Y.  Supp.  49;  People 
ex  rel.  Park  Circle  Amxise.  Co.  v. 
Board  of  Police  (1901),  36  Misc. 
(X.  Y.)  89;  72  X.  Y.  Supp.  583; 
People  ex  rel.  Bonfiglio  v.  Bing- 
ham (1910),  67  Misc.  (X.  Y.) 
539;  124  X.  Y.  Supp.  751;  People 
ex  rel.  Schivab  v.  Graiit  (1891), 
126  X.  Y.  473;  27  X.  E.  964. 

« McKenzie  v.  McClellan 
(1909),  62  Misc.  (X.  Y.),  342;  116 
X.  Y.  Supp.  645.  State  v.  Lodcn 
(1912),  117Md.  373;  S3  Atl.  564. 

Brown    v.    Stubba    (1916),    97 


passed  by  the  City  of  Baltimore 
requiring  an  applicant  seeking 
to  secure  a  license  for  the  erec- 
tion of  a  moving  picture  theatre, 
to  first  obtain  a  permit  from  the 
mayor  and  city  council  was  held 
valid  even  though  the  ordinance 
did  not  prescribe  any  rules  or 
regulations  limiting  the  exercise 
of  the  discretion  of  the  mayor 
and  city  council. 

See  also:  Krics  v.  Dick  (1914), 
141  Pac.  (Col.)  505.  Where  by 
statute  a  town  clerk  is  the  person 
designated  to  issue  licenses  for 
motion  picture  exhibitions,  the 
town  clerk  alone  is  the  proper 
party  in  mandanms  proceedings. 
It  is  improper  to  join  tlie  mayor 
and  members  of  the  town  Ijoard. 

*»  Tnuslces  etc.  v.  Lewis  (1912), 
63Fla.  691;57So.  014. 

See  also  Smith  v.  ('iln  of 
Raton  (1893),  104  Pac.  (X.  M.) 
109. 


EXTENT    OK    DISCRETION    (Jl     LICENSING    POWEU       '.W)l 


Just  as  they  may  i^raiit,  so  may  the  licensing  jxjwcrs 
revoke  the  license  where  grounds  for  so  doing,  exist.  And 
they  may  do  this  without  holding  any  formal  hearing  or 
giving  any  notice  to  the  licensee.  ''^  Indeed,  in  a  recent  ca.se 
it  was  held  that  where  the  theatre  was  unsafe  for  use  and 
the  interior  arrangement  was  not  in  compliance  witli  the 
law,  \\w  mayor  was  under  an  express  oljligation  to  so 
revoke  the  license.'" 

Section  108.     Extent  of  discretion  of  licensing  power. 

The  i)ower  of  the  licensing  authorities  to  grant  licen.ses 
is  restricted  in  tliree  respects — first,  by  its  rea.sonable- 
ness,  second,  in  respect  of  the  use  of  the  licensed  premises, 
and  third,  by  the  interest  of  the  puljlic.  Subject  to  these 
restrictions,  there  is  no  fetter  upon  the  power  of  the  li- 
censing authorities.''' 


"  McKctiziex.  McClellan  (1909), 
G2  Misc.  (X.  Y.)  342;  IIG  N.  Y. 
8upp.  G-1.5.  The  mayor  revoked 
tlie  licen.ses  issued  to  the  pUiintifTs 
without  any  notice  or  hearing. 
Held  that  sucli  power  was  vesteil 
in  him. 

Sec  also:  MatUr  of  Hammer- 
skin  (1907),  'il  Misc.  (X.  Y.) 
60();  102  X.  Y.  Supp.  950;  Fox 
Am.  Co.  V.  MeCUllan  (li)09),  02 
Misc.  (X.  Y.)  KK);  114  X.  Y. 
Supp.  594;  I'Jx  parte  S(oU  (Eng.) 
(19K)),  1  K.  n.  7;  W.  X.  302; 
32  T.  L.  K.  S4. 

'^Genesee  Recreation  Co.  \. 
Kilqcrlon  (1910),  172  ,\.  I).  (X.  Y.) 
404;  15S  X.  Y.  Sui)p.  421. 


'•  Theatre  de  Luxe  v.  Gledhill 
(Eng.)  (1915),  2  K.  B.  49;  W.  X. 
10;  84  L.J.  (K.  B.)(>19;  112  L.T. 
519;79J.  P.  238;31T.  L.  R.  138; 
13  L.  (1.   R.  541. 

I  At  h  ridge  v.  Wilaon  (Can.),  8 
A.  L.  R.  178;  8  W.  W.  R.  424. 
Statute  regulating  erection  and 
oi)eration  of  theatres  including 
licensing  control  aiul  sujxTvisioM 
of  use  and  ojx'rations  of  moving 
picture  machines  and  regulations 
of  exhibition,  sale  and  lejusing 
of  films  construed.  The  The;itrcs 
Act,  ch.  25,  1911-12. 

/tx  parte  London  <{•  Prorincial 
EL  Theatres,  Ltd.  (lOng.)  (1915), 
31  T.  L.  R.  329.    County  Coun- 


352 


THE    LAW   OF   MOTION    PICTURES 


As  an  illustration  of  the  first  limitation  upon  its  power, 
reference  may  be  had  to  ordinances  imposing  a  specified 
Ucense  fee.  Unless  the  amount  of  the  tax  is  excessive, 
the  courts  will  not  interfere.^- 

A  statute  imposing  a  Ucense  tax  upon  places  of  amuse- 
ment graded  according  to  the  size  of  the  city  wherein 
the  theatre  was  situated,  was  held  vahd;  ^^  so  also,  where 
the  tax  was  upon  a  graded  scale  according  to  the  price  of 
admission  charged. ^^ 

A  mayor  in  whom  was  vested  the  power  to  license  was 
permitted  to  look  behind  an  application  to  ascertain 
whether  its  actual  purpose  was  truly  represented,  and 
if  not  so,  to  refuse  to  issue  a  hcense.^^ 


cils  in  considering  applications 
for  license  under  the  Cinemato- 
graphic Act  of  1909  are  not  con- 
fined to  matters  relating  to  safety 
alone. 

See  also:  Ex  parte  Harrington 
(Eng.)  (1888),  4  T.  L.  R.  435; 
C.  A. 

"C%  of  Dididh  V.  Marsh 
(1898),  71  Minn.  248;  73  N.  W. 
962.  A  license  fee  of  $125  for 
six  months  was  held  not  to  be 
excessive. 

See  in  this  connection:  The 
King  v,  Dimock  (Can.) ,  30 1).  L.  U. 
217;  26  Can.  Cr.  Cas.  311;  44  N. 
H.  II.  124.  Under  an  Act  which 
imposes  generally  a  license  fee 
of  S50  on  "  public  places  of  amuse- 
ment," motion  pictures  may  not 


be  required  to  pay  $300  as  a 
license  fee. 

See  in  tliis  connection:  Leth- 
bridge  v.  Wihon  (Can.),  8  A.  L.  R. 
178;  8  W.  W.  R.  424.  Held 
that  in  the  absence  of  a  special 
provision  the  licensing  authority 
had  no  right  to  impose  a  license 
fee  on  theatres. 

"  State  V.  O'llara  (1884),  36  La. 
Ann.  93. 

To  the  same  efTect:  State  v. 
Schonhauscn  (1885),  37  La.  Ann. 
42. 

"  Metropolis  Theatre  Co.  v. 
City  of  Chicago  (1912),  228  U.  S. 
61;  33  Sup.  Ct.  441. 

"  People  ex  rcl.  (Uimiskey  v. 
Wurstcr  (1897),  14  A.  1).  (N.  Y.) 
556;  43  N.  Y.  Supp.  1088.    The 


EXTENT   OF    DISCRETION'    OF    LICENSING    P0\\T:R      353 

Thoro  arc  uunicrous  iiistaiict's  illustrative  of  the  third 
limitation.  The  question  has  usually  come  up  hi  cases 
where  the  one  vested  with  the  authority  to  Ucense,  has 
either  refused  to  issue  or  threatened  to  revoke  the  license 
of  a  theatre  because  of  the  exliihition  therein  of  a  motion 
picture  which  in  liis  opinion,  is  obscene,  unmoral,  seditious 
or  a])t  to  create  race  prejudice. 

The  comls  have  been  increasingly  prone  to  give  the 
licensing  power  wide  scope  in  the  exercise  of  its  cUscretion, 
until  now  the  broad  rule  followed  by  the  courts  seems  to 
be  that  unless  the  element  of  bad  faith,  cai)ri('iousness  or 
misinformation  is  ai)i)arent,  they  will  not  interfere  with 
the  discretion  exercised. 

"These  statutory  provisions  and  ordinances,  thevahdity 
of  wliich  is  not  and  could  not  well  be  questioned,  nec- 
essarily delegate  to  the  commissioner  authority  to  issue 
and  to  revoke  Ucenses  according  to  his  judgment  and  dis- 
cretion, to  be  exercised,  of  course,  in  good  faith  and  im- 
partially and  conscientiously  according  to  what  he  beheves 

mayor  may  refuse  to  grant  a  mayor  was  justified  in  tlie  con- 
(hoatrifal  license  to  a  dub  when;  elusion  that  a  lieense  for  a  first- 
it  apfK'ars  tliat  only  prize-fight  class  theatre  was  not  appli- 
exlul)iti()iis  arc  coiitcinplatcd.  cable  to  the  j)urj)<ises  for  which 
"It  would  certainly  be  remark-  the  Surf  Atliletic  Club  had  pre- 
able  to  deny  to  the  mayor  to  pared  its  building  and  to  which 
look  i)ehind  an  application  made  it  was  to  \tc  devoted.  And  it 
for  a  license  to  ascertain  wliether  may  be  assumed  that  his  refusal 
its  actual  purjKJse  was  truly  to  grant  the  license  was  fouiuled 
reprcsentetl,  and  if  not  so,  to  upon  the  fact.s  in  that  resjK'ct 
refuse  it.  He  undoubtedly  would  as  they  then  cxiste<l,  and  were 
have  that  power.  He  exercised  rea.sonably  inferable  from  them." 
it   in    the    relator's    case.      The 


354  THE    LAW   OF   MOTION   PICTURES 

to  be  in  the  interest  of  morality  or  decency  or  public 
safety  or  public  welfare.  It  is  not  the  judgment  and. dis- 
cretion of  those  who  are  interested  in  exploiting  a  film 
commercially,  as  is  the  plaintiff,  or  of  citizens  generally, 
or  even  the  courts,  but  that  of  the  commissioner  only 
[itahcs  that  of  the  coiu-t]  that  is  called  into  action.  The 
commissioner,  however,  must  not  abuse  the  discretion 
vested  in  him  by  acting  capriciously  or  arbitrarily  or  on 
false  information  and  without  reasonable  ground  for 
apprehending  that  the  public  moraUty,  or  decency,  or 
safety,  or  welfare  will  be  endangered,  but  the  extent  of 
inquiry  collaterally  by  the  courts  with  respect  to  his 
action  is  whether  there  is  reasonable  ground  upon  which 
such  apprehension  may  honestly  rest  in  the  exercise  of  a 
fair  and  legal  discretion,  and  if  not,  the  court  may  require 
him  to  act  or  enjoin  him  from  acting:  but  if  the  question 
be  doubtful,  and  there  be  room  for  an  honest  difference 
of  opinion,  then  the  matter  must  be  left  to  the  official 
to  whom  the  Legislature  has  delegated  authority,  and 
his  action  in  refusing  to  grant  a  license,  or  in  revoking 
one  granted,  cannot  be  annulled  or  controlled  collaterally 
as  by  mandamus  or  injunction."  '"^ 

'^Message    Plioloplay    Co.    v.  N.  Y.  Supp.    161;   Genesee  Rec- 

IklL    (1917),   New   York   Appel-  realion   Co.    v.    Edgoion    (15)10), 

late  Division;  N.  Y.  Law  Jour-  172  A.  D.  (N.  Y.)  464;  158  N.  Y. 

nal,  July  20th.     Citing:   People  i^upp.i2l;  People  ex  relCumiskey 

ex   ret.  Schwab   v.  (Imnl    (1891),  v.     Wurster    (1897),    14    A.    D. 

126  N.  Y.  473;  27  N.   E.  964;  (N.  Y.)  556;  4:3  N.  Y.  Supp.  1088; 

Matter  of  Orm.sb>j  v.  licit  (1916),  liiUcr  v.  Wallace  (1914),  100  A.  I). 

218  N.  Y.  212;  112  N.  K.  747;  (N.   Y.)   787;   145  N.   Y.  Supp. 

People    ex    rel.    Rota    v.    Baker  1041;    People    ex    rel.    Lodes    v. 

(1910),  136  A.  D.  (N.  Y.)  7;  120  Dep'l  of  Health  (1907),  189  N.  Y. 


EXTENT   OJ"    1>I.S(  KETH)\    ol     MCENSING    rOWEU      li.j'> 


This  is  tlu'  laii^iiu^!;('  of  tlic  Appclhitf^  Uivisi(jii  of  New 
York  (First  Dcpartineiitj  with  reference  to  the  hhn  kiKJwn 

A.  I).  (N.  Y.)  'jOd;  l.il  N.  V. 
Sui^p.  3G();  (itnc.stc  liecr.  v.  Ed- 
gcrton  (1910),  172  A.  D.  (N.  Y.) 
1()4;  158  N.  Y.  Supp.  421;  ItitUr 
V.  Wallace  (1914),  IGO  A.  I). 
(X.  Y.)  787;  145  N.  Y.  Supp. 
IWl." 

Univer.sal  Film  Mfy.  Co.  v. 
Bell  (1917),  N.  Y.  Law  Journal, 
June  5th,  Grccnbauin,  J.  'In- 
deed it  is  wholly  immaterial 
what  the  court's  opinion  may  he 
as  to  the  wisdom  of  the  conunis- 
si(jner's  action  as  long  as  he  acted 
in  good  faith.  The  court  cannot 
act  as  a  commissioner  of  licenses. 
That  the  ct)mmissioner  did  not 
act  arliitrarily  or  capriciously,  it 
is  hut  fair  to  state  that  the  affi- 
davits submitted  indicate  that  he 
ba.sed  his  opinion  of  the  character 
of  tlie  j)roduction  after  he  had 
tlioroughly  familiarized  iiim.self 
with  its  theme,  the  pictures  and 
(he  words  employed  in  its  prt\s- 
entation  and  considcrwl  tlie  ef- 
fect it  was  likely  to  pnxluce  upon 
tho.se  wiio  witne.'vs  it.  Among 
tl»c  answering  affidavits  a  numIxT 
of  them  are  maile  l)y  persons  of 
high  standing  and  by  rt*i)rcsen- 
tatives  of  civic  societies  to  the 
effect  that  tlie  play  is  contra 
botws  morwf.    Whether  their  opin- 


187;  82  N.  K.  1S7;  I'iexotlo  v. 
Bmrd  of  Kihiailum  (1!>14),  212 
N.  Y.  4();{;  100  N.  1-:.  ;«)7;  MalUr 
of  Fnnikliii  Film  Corponition 
(1917),  253  Pa.  St.  422;  98  Atl. 
62.'i;  Van  Nonlen  y.  Sewer  Com tn'r 
(1904),  «K)  A.  1).  (X.  Y.)  555; 
84  N.  Y.  Sui)p.  445;  Bainbndge 
V.  City  of  Minneapolis  (1915), 
131  Minn.  195;  154  N.  W.  964. 
"For  decisions  in  which  the  same 
rule  is  stated  but  mandamus 
was  issued  see:  I'J.  C.  T.  Club  v. 
Stale  Racing  Comm'n  (1907),  190 
N.  Y.  31;  82  N.  E.  723;  Cosby 
V.  liobin-son  (1910),  141  A.  D. 
(X.  Y.)  050;  120  X.  Y.  Supp.  540. 

"There  is  no  evidence  that  the 
threatened  action  of  the  defend- 
ant is  in  bad  faith,  and  it  must 
therefore!  i)e  presumetl  tliat  he  is 
acting  honestly  in  the  exercise 
of  fair  and  impartial  discretion 
and  judgment.  City  of  Buffalo 
V.  //(■//  (1903),  79  A.  D.  (X.  Y.) 
402;  7!)  X.  Y.  Supp.  449. 

"The  merits  of  the  action 
should  not  be  determined  on 
confhcting  aflidavits,  nor  should 
a  temj)orary  injunction  i.ssuc  in 
sucli  ca.se  against  the  official 
in  whom  the  law  has  vested  the 
duty  of  acting  in  tlic  premises. 
MaUcr    of    W'hitlen    (1913),    152 


356 


THE    LAW   OF   MOTION   PICTURES 


as  ''Birth  Control,"  in  which  case  the  order  of  the  justice 
at  special  term  enjoining  the  commissioner  of  hcenses 
from  in  anywise  interfering  with  the  exhibition  of  the 
picture  was  reversed." 


ions  are  correct  or  not  it  is  not 
necessary  for  the  court  to  pass 
upon,  but  they  are  merely  re- 
ferred to  as  bearing  upon  the 
question  of  whether  or  not  the 
defendant  has  abused  his  dis- 
cretion. Under  the  statute  the 
commissioner  is  to  consider 
whether  the  play  is  'immoral, 
indecent  or  against  the  public 
welfare.'  One  of  the  definitions  of 
the  word  'decency'  found  in  the 
Century  Dictionary  is  'propriety 
of  action,  speech,  dress,  etc' 
What  constitutes  decency,  or,  in 
other  words,  what  is  propriety 
of  action,  must  be  determined 
by  standards  in  vogue  among 
highly  civilized  peoples  and  not 
those  that  maj^  prevail  among 
the  Fiji  or  South  Sea  Islanders. 
Lewd  men  and  women  have  no 
sense  of  decency,  and  what  may 
be  regarded  a.s  decent  by  one 
person  may  not  be  thus  regarded 
by  another.  The  discnition  hon- 
estly exercised  by  the  comniis- 
sioiicr  in  the  discharge  of  his 
duties  iiiMV  not  be  overthrown 
by  the  court  excepting  only  wiien; 
it  may  be  .shown  lli;it  liis  actions 


were  influenced  by  corrupt  or 
dishonest  considerations,  the  bur- 
den of  proving  which  rests  upon 
the  moving  party." 

5^  For  other  cases  where  the 
licensing  power  altevi'pted  to  en- 
join the  exhibition  of  an  obscene 
or  immoral  -picture  see:  Universal 
Film  Manufacturing  Co.  v.  Bell 
(1917),  N.  Y.  Law  Journal, 
Greenbaum,  J.  (The  Hand  that 
Rocks  the  Cradle);  Sociological 
Research  v.  Waldo  (1914),  83 
Misc.  605;  145  N.  Y.  Supp.  492 
(The  Inside  of  the  White  Slave 
Traffic);  Genesee  Recreation  Co. 
v.  Bingham  (1916),  172  A.  D. 
(X.  Y.)  464;  158  N.  Y.  Supp. 
421  (no  title  given  in  decision); 
Block  V.  Citij  of  Chicago  (1909), 
239  111.  251;  87  N.  E.  1011 
(James  Boys  and  Night  Riders); 
Stein  V.  Bell  (1917),  N.  Y.  Law 
Journal,  May  2nd  (The  Awaken- 
ing of  Spring);  Ivan  Film  Pro- 
ductions V.  Bell  (1916),  N.  Y. 
Law  Journal,  December  5  (The 
Sex  Lure). 

For  cases  where  a  production 
<m  the  stage,  u^'th  living  actors  was 
involved     see:     I*coplc    v.     Doris 


EXTENT   OF   DISCRETION    OF    LICENSING    POW'ER      357 


A  court  has  refused  to  interfere  where  the  Ucensing 
authority  tlireatened  to  revoke  a  hcense  upon  the  ground 
that  the  proposed  exhibition  of  a  motion  jjicturc  would 
tend  to  cause  l)n\ic]ies  of  neutrality;  ''*  and  in  like  manner 
where  the  moti(jn  picture  was  likely  to  create  race  prej- 
udice.'"'^ 

The  courts  also  upheld  a  commissioner  of  licenses  in 
his  refusal  to  grant  a  license,  where  the  owner  of  the 
adjacent  ])rojierty  stored  combustibles/'" 


(1S97),  11  A.  1).  (X.  Y.)  117; 
43  X.  V.  Supp.  ')71;  appeal  dis- 
missed, 153  X.  Y.  67S;  4S  X.  K. 
1100  (A  pantomime  entitled 
"Orange  Blossoms");  Brewer  v. 
Wytiiir  (1913),  103  X.  C.  319; 
79  S.  !•:.  029  (The  Cirl  from 
Rector's);  King  v.  McAttUJfe 
(Can.),  S  Can.  Cr.  Ca.s.  21 
(Hallet  Dancing). 

'■UJfr  I'hoto  Film  V.  Brll 
(191-))',  \K)  Misc.  (N.  Y.)  409; 
154  N.  Y.  Supp.  76;^  Plaintiff 
wa.s  about  to  exhibit  a  motion- 
picture  depicting  .scenes  of  tiie 
Cicrman  War.  Defendant,  Com- 
missioner of  Licenses,  tlireatened 
to  revoke  the  license  of  tlu^ 
theatre  producing  tlie  same,  and 
])hiiiitilT  was  granted  injunction 
on  tlie  groimd  tliat  it  would 
be  imi)ossil)le  for  iiim  to  obtain 
any  relief  otherwise. 

''•U<:(U-lstein  V.  Brll  (1915),  91 
Misc.    (X.   Y.)   620;    155   X.   Y. 


Supp.  590.  The  cf)urt  would  not 
interfere  with  a  commi.s.sioner  (}f 
licenses  where  he  refused  U>  grant 
a  license  iM'rmitting  theexhil)ition 
of  a  photoplay  entitled  "The 
Frank  Ca.-^e"  ba.sed  on  the  inci- 
dents of  the  famous  murder  trial 
in  (!e()rgia. 

Hambridijc,  Jr.  \.  City  of  Min- 
iwapulis  (1915),  131  Minn.  195; 
l.')4  X.  W.  90^1.  Action  wa.s 
brought  to  enjoin  mayor  from  re- 
voking license  of  theatre  wherein 
plaintilT  had  arranged  to  exhil)it 
tlie  film  "The  Birth  of  a  Xation." 
//(/'/  that  mayor  wa.s  not  abusing 
his  discretion  or  exercising  it 
capriciously. 

«« Maltcr  of  Ormsby  v.  Bell 
(1916),  21S  X.  Y.  212;  112  X.  K. 
7 17.  Since  tiie  jiower  of  the  coin- 
mis.si()ner  to  grant  a  license  to  a 
motion  picture  theatre  is  dis- 
cretionar>',  it  wa.s  held  that  it 
w;us    not    an    abu.sc   of    liis   dis- 


358  THE   LAW  OF  MOTION   PICTURES 

It  was  also  held  to  be  a  proper  exercise  of  discretion  to 
refuse  a  license  because  of  the  proximity  of  the  building 
wherein  the  motion  pictures  were  contemplated  to  be 
given,  to  a  church  and  school." 

And,  in  England,  the  courts  refused  to  interfere  where 
a  municipahty  refused  a  Hcense  for  a  motion  picture 
theatre,  when  the  applicant  for  the  license  was  a  com- 
pany of  which  the  majority  of  the  stockholders  were  alien 
enemies.^- 

Attention,  however,  may  be  here  called  to  cases  where 
it  was  held  that  where  there  had  been  full  comphance 
with  the  requirements  of  a  statute  for  the  issuance  of  a 
license  for  a  motion  picture  theatre,  the  apphcant  was 
prima  facie  entitled  to  such  license.®^ 

Section  109. — Right  to  license  on  condition. 

Provisions  contained  in  a  licensing  act  requiring  the 
payment  of  specified  sums,  as  a  condition  precedent  to 
the  issuance  of  a  hcense,  have  been  held  vaUd.''^ 

cretion   to   refuse   a   license   bo-  nor  (1912),  77  Misc.  (X.  Y.)  57G; 

cause  the  owner  of  the  adjacent  137  N.  Y.  Supp.  lOG. 

property  stored  comlMistibles  and  "  R.  v.  London  County  Cotmcil, 

would  lose  liis  permit  if  the  theatre  ex  parte  (Eng.)   (1915),  2  K.  13. 

were  opened.  482;  W.  N.  154;  84  T..  .1.  (K.  H.) 

See  also:  Matter  of  Armstrong  \.  1795;  113  L.  T.  122;  31  T.  L.  R. 

Murphy  (1901) ,  65  A.  D.  (N.  Y.)  329;  70  J.  P.  417. 

123;  157  X.  Y.  Hupp.  534;  City  '^^  Walker  v.   Fulmnan   (1914), 

of  Buffalo  V.   Chndcnyne   (1889),  84  Misc.  (X.  Y.)  118;  140  X.  Y. 

7   X.   Y.   Supp.   501;    afT'd    134  Supp.  519;  Kries  v.  Dick  (1914), 

N.  Y.  103;  31  X.  K.  443;  French  141  Pac.  (O)!.)  505. 

V.  Jonefi  (1900),  191  Mass.  522;  <>*  Higgim    v.    Lacroix    (1912), 

78  X.  E.  118.  119  Minn.  145;  137  X.  W.  417. 

'^^  People  ex  rcl.  Moses  v.  (lay-  A  license  fee  of  .S2(K)  as  a  piere(iui- 


RIGHT   TO    LICENSE    ON    CONDITION 


:V)Q 


Where  the  licensing  power  is  vested  by  statute  in  a 
political  subdivision  of  the  state,  it  may  insert  and  enforce 
a  stipulation  that  the  theatre  shall  be  kept  open  only 
durinji;  specified  hours.^'" 


site  to  operate  a  motion-picture 
theatre  in  a  villaRo  hold  not  to 
\)e  excessive. 

"The  village  is  presumably 
a  growing  community  now  having 
more  than  one  thousand  inhabi- 
tant*^. These  shows  are  usually 
carried  on  every  day  in  the  week 
with  several  performances  each 
day.  Fifty-five  cents  per  day 
does  not  appeal  to  us  to  be  so 
liigh  that  it  necessarily  results  in 
prohibiting  moving  picture  shows 
from  locating  at  Deer  River." 

Park  V.  Morgan  (1912),  64 
Fla.  414;  60  So.  347.  An  ordi- 
nance imposing  a  license  tax  upon 
theatrical  shows  was  held  valid. 

Baker  v.  Cily  of  Cincinnati 
(1860),  11  Ohio  St.  .534.  A  pro- 
vision in  a  licensing  act  whicii 
exact<'d  the  payment  of  .SG;^.')!) 
from  the  applicant  for  license  held 
legal. 

To  the  same  effect:  CiUj  of 
Boston  v.  Schajfer  (KS.30),  26 
Mtuss.  415;  Hodges  v.  Mayor 
(1840),  21  Tenn.  61;  State  v. 
D'Hara  (1884),  36  La.  Ann.  93; 
State  v.  Schonhniiser  (188.5),  37 
La.  Aim.  42;  City  of  Diduih  v. 


Marsh  (1898),  71  Minn.  248; 
73  N.  VV.  962;  Metropolis  Theatre 
Co.  V.  City  of  Chicago  (1912), 
228U.  S.  61;.33Sup.  Ct.441. 

People  V.  Coleman  (18.54),  4 
Cal.  46.  For  an  exhaustive  sum- 
mary of  the  right  of  the  state  to 
tax  trades,  professions  and  oc- 
cupations. 

See  in  this  connection:  Orton 
V.  Brown  (1858),  35  Miss.  426. 
Discussing  a  tax  of  S25  a  day  im- 
posed upon  a  circus  the  court 
said: 

"Hence  the  law  ta.xes  the  ex- 
hibition as  a  matter  of  public 
policy,  and  thereby  gives  the 
right  to  make  the  exhibitions 
upon  payment  of  the  sum  re- 
(juired.  This,  in  effect,  is  a 
license  to  do  an  act,  and  not  a 
tax  MIX)!!  proix^rty;  and  therefore 
when  the-  sum  requireil  is  paid, 
the  right  is  conferred  without 
further  exaction." 

In  other  words  where  the  owner 
had  paid  his  tax,  he  was  not  re- 
(luiretl  to  pay  an  additional 
county  tax. 

**  People  ex  rel  Kielcy  v.  lA-nt 
(191.5),  166  A.  D.  (X.  Y.)  .5.50; 


360 


THE    LAW   OF  MOTION   PICTURES 


The  applicant  for  a  license  may  also  be  required  to 
pledge  himself  not  to  apply  for  a  hquor  Ucense,  as  a  con- 
dition to  the  granting  of  the  theatre  Ucense.^^ 

And  generally,  the  hcensing  power  may  impose  condi- 
tions for  the  grant  of  the  hcense,''^  and  reasonable  Umits 
may  be  placed  upon  the  exercise  of  the  rights  granted 
thereunder.^^ 

It  may  not,  however,  impose  a  condition  that  the  theatre 
shall  remain  closed  on  Sunday,  as  that  in  the  language  of 
the  courts  "must  be  deemed  'tyrannical'  and  a  usurpation 
of  power  and  not  'discretionary'  ...  for  the  mayor  thus 
makes  a  Sunday  law  unto  himself  and  seeks  to  impress  it 
upon  the  community  in  hostihty  to  the  general  law  of  the 
state  and  judges  that  of  which  the  legislature  is  the  sole 
judge."  69 

152  N.  Y.  Supp.  18.  "A  license 
may  be  conditionally  granted. 
It  may  be  given  subject  to  cer- 
tain reasonable  hours  of  opening 
and  other  Hmits  upon  its  exercise." 

6"  Queen  v.  County  Council 
(Eng.),  2  Q.  B.  D.  3S6.  The 
County  Council  may  require,  as 
a  condition  to  granting  a  theatre 
license,  that  the  appUcant  pledge; 
himself  not  to  apply  for  a  liquor 
license. 

"  R.  V.  YoiLshirc  Covnty  Coun- 
cil (Eng.)  (ISUO),  2  q.  ii.  :iS(i; 
Manchesler  Palace  v.  Manchesler 
Corporation  (Eng.)  (1898),  62 
J.  P.  425;  R.  V.  ShcerncKn  County 
Council  (Eng.)  (1898),  ()2  .1.  P. 
56.},  C.  A. 


And  as  to  procedure  where  li- 
cense is  opposed  see:  Royal  Aqua- 
rium Soc.  V.  Parkinson  (1892), 
1  Q.  B.  431 ,  C.  A;  R.  v.  London  Co. 
Coumil  (Eng.)  (1892),  1  (^  B.  190; 
R.  V.  London  Co.  Council  (Eng.) 
(1894),  71  L.  T.  638;  Leeson  v. 
General  Council  (Eng.)  (1889),  43 
Ch.  D.  300,  C.  A. 

•■'»  People  ex.  rcl.  Kieley  v.  Lent 
(1915),  100  A.  D.  (N.  Y.)  550; 
1.52  N.  Y.  Supp.  18. 

''^Klinqer  v.  Ryan  (1915),  91 
Misc.  (N.  V.)  71;  153  N.  Y. 
Supp.  71;  153  N.  Y.  Supp.  937. 
Re-affirming  the  doctrine  of 
People  ex  rel.  Kieley  v.  Lent,  that 
since  a  municipality  could  not 
enforce   a   Sunday   closing   ordi- 


RIGHT   TO    LICENSE    ON    CONDITION 


361 


Where  the  theatre  license  is  issued  by  one  bureau  and 
the  liquor  license  by  another,  the  theatrical  licensing 
bureau  is  not  thereby  necessarily  deprived  of  its  control 
over  the  sale  of  licjuor  in  the  theatre.  The  licjuor  licensing 
bureau  may  be  reciuired  to  first  secure  the  consent  of  the 
other  bureau  before  issuing  its  license  to  the  theatre."" 


naiu-o  !)>'  finos  or  imprisonment 
unless  exprc-ssh/  nulhorized  by  the 
I>egislature,  it  could  not  accom- 
plish the  same  purpose  by  the 
conditions  of  a  license. 

But  see:  A7/w  v.  No.  American 
Theatres  (Eng.)  (1915),  2  K.  B. 
61;  112  L.T.  101 S;  \V.  N.  61;  79 
J.  P.  297:  i;}  L.  ("..  H.  735;  84 
L.  J.  (K.  Ji.)  1077;  :U  T.  L.  U. 
201.  A  condition  contained  in  a 
license,  that  the  theatre  be 
kept  closed  on  Sunday  was  held 
valid,  and  might  lawfully  be  im- 
posed. 

Also  to  same  efTect,  London  Co. 
Council  V.  Bcrmomhey  Bioscope 
Co.  (Eng.)  (1915),  27  T.  L.  R. 
141. 

In  this  connection  see:  City 
of  Mnhilc  V.  Kin- nan  (1911),  .54 
So.  (Ala.)  102:  Yorkrille  v.  Bing- 
ham (l!K)!)),(n  Misc.  (X.  V.)  mG; 
US  N.  Y.  Supp.  7.5;i. 

See  also:  Theatre  De  Liix^  v. 
GMhill  (Eng.)  (1914),  31  T.  L.  R. 
1.38;  112  L.  T.  519.  A  theatre 
licen.se  was  granted  ujwn  comli- 


tion  that  no  child  under  ten 
years  of  age  should  be  allowed  t<> 
attend  under  any  circumstances 
after  9  P.  M.  Held,  that  the  act 
was  ultra  vires  ujxjn  the  ground 
that  there  wa.s  no  connection 
between  the  ground  ujxjn  which 
the  condition  was  impo.setl  and 
the  .subject  matter  of  the  license. 
Dissenting  opinion  by  Atkin,  J., 
that  county  c<juncils  were  prop- 
erly entitled  to  take  into  account 
the  public  interest  so  far  a.s  chil- 
dren were  alTcctetl. 

'"  Qtu'cn  V.  Commi.'<sioner!<  of 
Inland  Rev.  (Eng.),  .57  L.  J.  M.  C. 
92.  The  question  was  as  to 
whether  the  Empire  Theatre 
could  obtain  an  excise  license 
from  the  commissioners  of  In- 
land Revenue.  Held  that  since 
it  wjis  licen.se<l  as  a  music-hall, 
application  W(Mild  have  to  l)e 
made  in  the  regular  way  to  a 
ju.stice  as  required  by  5  «fc  »> 
Wm.  IV,  c.  39,  s.  7  and  that  the 
Licensing  Act  of  1S72  did  not 
api)ly. 


CHAPTER  IX 

THE   PUBLIC    (continued) 

Regulation 

Sec.  110.  Buildings — Distances. 

111.  Standees— Aisles — Closing. 

112.  Operator  and  booth. 

113.  Firemen — Fire-escapes — Exits. 

114.  Admission  of  cliildren. 

115.  Regulation  amounting  to  prohibition. 

116.  Prohibition — Immorality. 

117.  ^^^lo  is  liable  for  penalty. 

118.  Ticket  "Scalping." 

119.  Censorship. 

120.  Sunday  performance. 

Section  110. — Buildings — Distances. 

It  is  a  valid  exercise  of  the  police  power  to  regulate  the 
construction  of  the  theatre  building/  the  nature  and  kind 
of  materials  to  be  used  in  certain  parts  therein  and  the 
like.2    The  authorities  may  also  demand  that  changes  be 

^  McCke    V.    Kctmcdy    (lOOS),  auditoriums  on  the  level  with  the 
114  S.  W.  (Ky.)  298;  People  v.  street  was  held  constitutional. 
Bime    (1910),    248    111.    11;    93  M.  G.  v.  Shoreditch  Corpora- 
ls. E.  327.  tlo7i   (Eng.)    (1915),  2   Ch.    154; 

Jewel  Theatre  Co.  v.  Wimhip  79  J.  P.  309;  W.  N.  1S4;  31  T.  L. 

(1914),  144  N.W.  (Mich.)  8.35.    A  H.  400;  S4   L.  J.   (Ch.)  772;  59 

statute  requiring  that  all  motion  Sol.  .lo.  439;    112   L.  T.   (>2S;   13 

piftiirc  theatres  shall  have  their  L.  (i.   It.    11  II.     The  authorities 

302 


lUILDlNGS — DISTANCES 


303 


made  in  tho  builclinp;  to  reduce  fire  hazards  and  other 
risks.''  Wiiere,  liowever,  the  relator  had  ('(luipi)ed  and 
used  a  building  as  a  motion  picture  theatre,  the  mayor 
of  the  City  of  New  York  was  held  to  be  not  authorized  to 
withhold  a  license  from  him  under  the  provisions  of  an 
ordinance  which  was  passed  subseciuent  to  such  equip- 
ment.' 

It  was  held  in  England  that  a  tent  was  not  a  "place" 
poriiiittcd  the  ownors  of  a  public      tlie   first   instance,   and   (luite   a 
KwiininiiiK  l)atli  to  liirn  it  into  a 
motion   i)icture   tiicatic 

'/e.  V.  Hainiaij  (Kng.)  (1891), 
2  q.  n.  709. 

*Inre  Walker  (1914),  ^  Misc. 
(N.  Y.)  118;  146  N.  Y.  Supp. 
519.  Where  the  relator  liad 
ecjuipjx'd  and  used  a  ])uilihn}; 
a.s  a  motion  picture  theatre  prior 
to  December  1st,  1912,  the  Mayor 
of  the  city  \v:vs  not  autliorized 
to  witliliold  a  Hcense  from  him 
under  the  ])rovisions  of  an  or- 
(Hnance  which  was  passed  in 
March,  1913. 

"If  the  mayor  may  withliold 
a  license  then  it  is  witliin  his 
power  to  destroy  vahial)le  j)roi>- 
erty  rights  of  owners  who,  acting 
under  com|)etent  authority  have 
invested  large  sums  in  the  con- 
struction of  moving  picture  .shows, 
by  simply  refusing  to  renew  such 
licenses  when  such  licenses  ex- 
pire. It  is  one  thing  to  refuse  a 
lic(>nse  to  i)uild  and  construct  in 


dilTerent  thing  to  refuse  to  {xjrmit 
the  continued  use  of  such  a 
theatre  when  once  lawfully  con- 
Ktructe<l  under  a  lawful  jx'r- 
mit." 

See  however:  Greenoiigh  v. 
Allen  Thatlrc  etc.  (1911),  SO 
Atl.  (H.  I.)  2(>().  Defendants  had 
.secured  a  jxTinit  to  alter  a  .stable 
into  a  theatre  in  accordance 
with  plans  theretofore  filed  by 
them.  The  plans  filed  by  defend- 
ants conformed  to  the  laws  then 
in  force.  Subse<iuently  a  statute 
was  enacted  requiring  that  all 
theatres  thereafter  "erected" 
shall  be  built  in  accordance  with 
such  statute.  Held  that  the 
statute  being  one  for  the  health 
and  safety  of  the  i)ublic  it  shouKl 
be  frwly  const  ruinl  aiul  that 
the  word  "erected"  was  intended 
to  include  alterations  made  to 
buildings,  erecte<l  prior  to  the 
jiassage  of  tlie  statute,  to  trans- 
form them  into  theatres. 


364 


THE    LAW   OF   MOTION    PICTURES 


within  the  meaning  of  the  Act  of  1843,^  but  in  this  country 
a  tent  was  classified  as  a  "building"  on  the  question  of 
fire  limits.^ 

In  some  jurisdictions  it  has  been  held  that  the  munic- 
ipahty  has  not  the  power  to  construct  a  building  for  the 
giving  of  theatrical  performances,  such  being  purely 
private  enterprises,  while  in  other  jurisdictions  the  con- 
trary rule  has  been  apphedJ 

The  right  to  withhold  licenses  from  theatres  unless  they 
are  situated  beyond  a  certain  radius  of  a  school  or  church 
is  a  valid  exercise  of  the  police  power.^ 


^  Davys  v.  Douglas  (Eng.),  4 
H.  and  N.  180.  Section  two  of 
the  Theatres  Act  of  1843: 

"It  shall  not  be  lawful  for  any 
person  to  have  or  ke(;p  any  house 
or  other  place  of  public  resort  in 
Great  Britain,  for  the  public 
performance  of  stage-plays,  with- 
out authority  by  virtue  of  Letters 
Patent  from  I  lor  Majesty,  her 
heirs  and  successors  or  predeces- 
sors, or  without  license  from  the 
Lord  Chamberlain  of  Iler  Maj- 
esty's hous('lif)l(l  for  the  time 
being,  or  from  the  justices  of 
the  peace  as  hereinafter  provided; 
and  that  every  person  who  shall 
offend  against  this  ena(!tment 
shall  be  liable  to  forfeit  such 
sum  as  shall  be  awarded  by  the 
Court  in  which,  or  the  justices 
by  whom  he  shall  l)i'  convicted, 
not    exceeding    twenty     pounds 


for  every  day  on  which  such 
house  or  place  shall  have  been 
so  kept  open  by  him  for  the  pur- 
pose aforesaid  without  legal  au- 
thority." 

"  Cify  of  St.  Louis  v.  Nash 
(1916),  18  S.  W.  (Mo.)  1145. 
Defendant  built  a  tent-like  struc- 
ture within  the  fire-limits  of  St. 
Louis  in  wliicli  he  gave  motion 
picture  exhibitions. 

Held  that  the  structure  was  not 
a  "tent"  but  was  a  "building" 
within  the  classification  of  an 
ordinance  which  prohibited  the 
erection  of  a  so-called  fourth- 
class  building  witliin  the  fire- 
limits. 

'  See  Section  7i),  p.  24S,  for  a 
detailed  discussion  of  this  subject 
and  for  all  the  cases. 

"  People  ex  ni.  Moses  v.  Gaijuor 
(1!)12),   77    Misc.    (N.    Y.)    570; 


STANDEES — AISLES—  (.'LOSINa 


3Go 


Section  1 11. — Standees — Aisles — Closing. 

As  a  precauticjiiary  nieasiu'e  agaiii>t  panics,  statutes 
and  ordinances  have  been  passed  i)njhil)iting  patrons 
from  standing  in  the  aisles  of  a  theatre'    ^^^lil('  in  an  early 


137  N.  Y.  Supp.  196.  Where  the 
power  to  grant  licenses  for  mo- 
tion-picture shows  is  vested  solely 
in  the  Mayor,  it  is  not  an  abuse 
of  his  discretion  to  refuse  a  license 
to  an  applicant  for  a  site  next 
to  a  public  school  and  opposite 
a  church,  where  it  is  shown  that 
parents  have  rcinonst rated,  and 
clergy  protested  against  the  Is- 
suance of  the  license. 

Nahser  v.  City  of  Chicago  (1916) , 
271  111.  288;  111  N.  E.  119.  It 
was  held  that  under  its  police 
power  a  municipal  corjwration 
could  refuse  to  grant  a  license  for 
a  moving  picture  tlieatrc  which 
wtus  situated  within  two  hundred 
feet  of  a  church. 

See  also:  Matter  of  Kohn  (Wag- 
ener,  Sis.son)  (1917),  N.  Y.  Law 
Journal,  Mi\y'2\);(l()o<frich  v.  Bussc 
(1910),  247  in.  :J67;  93  X.  K.  292; 
Ex  parte  Quong  Wo  (1911),  161 
Cal.  220;  118  Pac.  214;  Storer  v. 
Dowmy  (1913),  215  Mass.  273; 
102  N.  E.  321 ;  .S7.  Loiti.s  v.  Fischer 
(1902),  167  Mo.  6.')4;  67  S.  W. 
1100;  Green  v.  Saraimh  (1849),  6 
CJa.  1 ;  People  ex  rel  iMnge  v.  /*«/- 
miner  (1911),  71   MLsc.   (N.  Y.) 


158;  128  X.  Y.  Supp.  426;  affd 
144  A.  D.  (X.  Y.),  .S94;  128  X.  Y. 
Supp.  1140;  aff'd  202  X.  Y.  608; 
96  X.  E.  1126;  Citij  of  DuhUh  v. 
Marsh  (189S),  71  Miim.  248; 
73  N.  W.  962;  City  of  Chicago  v. 
Stralton  (1896),  162  111.  495; 
44  X.  E.  853;  People  ex  rel.  Keller 
v.  Oak  Park  (1915),  266  111.  365; 
107  X'.  E.  636;  Den-smore  v. 
Evergreen  (1910),  01  Wa.sh.  230; 
112  Pac.  255;  City  of  Chicago  v. 
liiphy  (1911),  249  111.  46.S;  94  X. 
I'].  931 ;  City  of  Chicago  v.  Shaynin 
(1913),  258  111.  69;  101  X.  E.  224; 
Drey f lis  v.  Montgomery  (1912), 
4  Ala.  App.  270;  58  S(j.  730. 

KSturgis  v.  Ilayman  (1903), 
84  X.  Y.  Supp.  126.  Ilel'l  a 
vi(jlation  of  the  statute  to  permit 
jHTsons  to  stand  in  the  side  au<lcs, 
where  such  aisles  were  used  to 
reach  the  side  e.\it. 

Rex  V.  Hazza  (Can.)  (1916), 
28  D.  L.  K.  373;  25  Can.  Cr.  Ca^i. 
306;  34  W.  L.  U.  97.  Spectators 
at  a  motion-i)i('ture  tlieatre  may 
stand  in  the  space  between  the 
box-office  and  the  entrance  of  the 
theatre,  known  as  the  lobby, 
while  waiting  for  admission;  and 


366 


THE    LAW   OF   MOTION   PICTURES 


decision  the  space  in  the  rear  of  the  orchestra  chairs 
was  held  to  be  not  an  "aisle,"  ^^  a  later  decision  in  the 
same  state  held  that  such  space  was  an  *' aisle."  ^' 

The  fact  that  in  the  aisles  in  which  patrons  were  per- 
mitted to  stand,  seats  might  have  been  lawfully  in- 
stalled, did  not  reheve  the  proprietor  from  hability;  ^^ 
and  this  was  true  where  stools  and  chairs  had  been 
placed  in  the  aisles,  although  fixed  seats  might  have  been 
installed.  ^^ 


this  will  not  be  a  violation  of  an 
ordinance  which  prohibits  the 
standing  of  patrons  in  the  aisles 
or  exits. 

^''Sturgis  v.  Grau  (1902),  39 
Misc.  (N.  Y.)  330;  79  N.  Y.  Supp. 
843.  The  space  in  the  rear  of  the 
orchestra  of  the  Metropolitan 
Opera  House  was  occupied  by  a 
large  number  of  standees.  Held 
no  violation  of  the  statute,  as 
this  space  was  not  an  aisle  or 
passageway,  and  was  not  used 
by  the  audience  for  ingress  or 
egress. 

>'  Waldo  V.  Seelig  (1911),  70 
Misc.  (N.  Y.)  254;  12G  N.  Y. 
Supp.  79S;  aff'd  146  A.  D.  (N. 
Y.)  879;  130  X.  Y.  Supp.  1133. 
Action  was  brought  by  the  Fire 
C.'onnnissiouer  to  recover  a  pen- 
alty from  the  proprietor  of  u 
theatre  for  ol)structitig  tlie  aisles 
in  his  theatre.  Held  that  the 
Hpace  directly  back  of  the  seats 


of  the  main  floor  was  an 
"aisle." 

''- Potter  V.  Watt  (Eng.)  (1914), 
84  L.  J.  (K.  B.)  394;  79  J.  P. 
212;  112  L.  T.  508;  31  T.  L.  H. 
84.  The  respondent  was  found 
guilty  of  permitting  people  to 
stand  in  the  aisles  of  his  theatre, 
in  violation  of  the  Cinemato- 
graph Act  of  1909. 

The  fact  that  he  had  not  in- 
stalled the  full  number  of  .seats 
in  the  theatre  was  no  justifica- 
tion. 

'^Sturgis  v.  Coleman  (1902), 
38  Misc.  (N.  Y.)  .303;  77  N.  Y. 
Supp.  886.  Wliile  the  side- 
aisles  of  a  theatre  were  much 
wider  than  the  minimum  pre- 
scribed by  law,  it  was  held, 
n('vertliele.ss,  to  l)e  a  violation 
l(»  place  stools  and  chairs  therein, 
even  though  i)ermanent  seats 
might    have   been    built   u]). 


OPERATOR    AM)    BOOTH 


3G7 


A  tlioatrc  exit  may  open  upon  an  alley." 
Regulations  as  to  closing  are  reasonable  and  valid. '^ 

Section  112. — Operator  and  booth. 

It  is  a  reasonable  exercise  oi  the  pohce  power  to  recjuire 
all  i)ersons  operating  motion  picture  machines  to  submit 
to  examinations  before  obtaining  a  license.'® 

"The  danger  to  life  and  property  incident  to  the  use  of 
moving  picture  machines  when  operated  by  incompetent 
persons  is  known  to  all.  The  films  used  in  connection  with 
the  machine  are  highly  explosive  and  dangerous  in  their 
character,  and  if  not  properly  managed  and  cared  for  are 
Hable  to  explode."  ^^ 


"  (^'ity  "f  ImUannpulis  v.  Miller 
(1!)07),  ION  Iiul.  285;  80  N.  K. 
620.  Action  fur  violation  in 
niaiiitainin}:;  an  alloy  entrance 
to  the  theatre.  Held  that  the 
ordinance  was  invalid  in  that  it 
deprived  the  defendant  of  the 
use  of  a  public  highway. 

"  People  ex  rel.  Kicley  v.  Lent 
(1915),  166  A.  D.  (X.  Y.)  550; 
152  N.  Y.  Supp.  18;  aflf'd  215 
N.  Y.  626;  109  X.  E.  1088. 

Gallagher  \'.  Riuld  (IOur.)  (1898), 
1  Q.  B.  114.  The  time  for  ch.siiig 
under  the  Licensing  Act  of  1S74 
held  to  apply  ctjually  to  theatres 
and    to    nuisic-halls. 

.4.S  to  whether  an  ordinance  re- 
quiring all  female  patrons  attend- 
ing theatrci,  motion  picture  ex- 
hibitions or  other  amusemetUs  to 


remove  their  lulls  wan  valid  see: 
Oldhcow  V.  Citu  of  Atlanta  (1911), 
71  S.  E.  (tlu.)  1015. 

'« Slate  ex  rel.  Ebert  v.  Loden 
(1912),  117  iMd.  373;  83  Atl.  564. 
A  statute  which  required  all 
persoas  to  submit  to  examination 
before  obtaining  a  licen.se  as 
motion-picture  ojx^rator  was  held 
constitutional. 

''  State  ex  rel.  Ebert  v.  Loden 
(1912),  117  Md.  373;  8.3  .\tl. 
564. 

Victoria  Pier  Syndicate  v. 
liecie  (Eng.)  (1912),  28  T.  L.  R. 
443.  The  word  "inflammable" 
as  used  in  the  Cinomctographic 
Act  of  1909  is  not  hmitcd  to 
films  which  are  "inflanunable" 
only  while  being  useil  in  the  pro- 
ecting  machine. 


368  THE    LAW   OF   MOTION   PICTURES 

The  booth  m  which  the  machine  is  inclosed  may  also 
be  required  to  be  fireproof ed.^^ 

It  has  been  held  that  an  officer  entering  the  theatre 
premises  for  the  purpose  of  making  an  inspection  to  see 
whether  inflammatory  films  were  being  used,  may  make 
other  observations  as  well,  and  will  not  be  considered  a 
trespasser.  ^^ 

Section  113. — Firemen — Fire-escapes — ^Exits. 

The  hcensing  powers  have  the  undoubted  right  to  have 
firemen  inspect  the  theatres  and  remain  throughout  the 
performances.-"  But  they  may  not  compel  the  proprietor 
of  the  theatre  to  pay  for  such  fireman,  for  that  would  be 
manifestly  unfair.  As  one  judge  said,  they  could  appor- 
tion a  goodly  number  of  fu-cmen  and  policemen  tlii'ough- 
out  the  amusement  places  of  the  city,  and  thereby  saddle 
such  proprietors  with  the  cost  of  maintaining  almost  the 
entire  fire  and  pohce  departments.-^ 

^^  Mailer    of    Whitten    (1912),  '-^  City  of  Hartford  v.  Parsom 

152  A.  D.  (N.  Y.)  506;  137  N.  Y.  (1913),  87   Conn.   412;   87   Atl. 

Supp.  360.     It  was  liold  not  to  736.     Hehl   that   where   statute 

be    an    abuse    of    discretion    to  required  that  a  fireman  or  police 

deny  a  license  because  the  mo-  officer    should    ]:)e    stationed    in 

tion  picture  'booth  was  not  fire-  each  theatre  during  performances 

proofed.  and  was  silent  as  to  who  shall 

"Mc\'iltie    V.    Turner    (Eng.)  pay  such  person,  tlie  obligation 

(1915),  60  S.  J.  238;  113  L.  T.  to  pay  rested   upon  the  inunic- 

982;  13  L.  G.  R.  1181;  79  J.  P.  ipality  and  not  upon  the  owner 

(Journal)  400.  of  the  theatre.    Held  further  also 

2"  City  of  Hartford  v.   Parsons  that  such  statute  was  reasonable 

(191.3),   87    Conn.    412;    87    Atl.  and  proper. 

7'M);    City   of  Chicago   v.    Wehcr  ('it;/ of  ('liiauio  v.  Wclwr  {l*.)\0) , 

(1910),  246  111.  304;  92  N.  E.  859.  210  111.  304;  92  N.  E.  859.    Held 


FIUE.MEN — FIRE-ESCAPES — EXITS 


3G9 


Safeguards  against  fire  and  attendant  loss  of  life  arc  of 
prime  importance  \vliere  theatres  are  concerned,  and  the 
regulating  powers  may  require  any  j^rccaution  deemed 
necessar}'  in  that  resjiect.  For  that  reason,  statutes  and 
ordinances  regulating  {ire  inspection  have  been  upheld  as 
constitutional  and  reasonable,--  as  well  as  acts  requiring 
exits,  fire-escapes,  fire-extinguishers  and  the  like.-''  In 
addition,  the  penalties  for  infraction  are  severe  and  rigidly 
enforced.-' 


that  while  the  city  might  pass 
an  ordinance  compcHing  the 
theatre  to  have  a  fireman  in 
attendance,  the  proprietor  of  the 
theatre  could  not  be  compelled 
to  pay  for  the  fireman. 

To  the  same  effect  see:  Waters 
V.  Leech  (1840),  3  Ark.  110;  but 
see  contra:  Tanneyibaum  v.  Rehm 
(1907),  152  Ala.  494;  44  So.  532; 
Cily  of  New  Orleans  v.  Hop  Lee 
(1901),  104  La.  601;  29  So.  214; 
Harrison  v.  Baltimore  (1843), 
1  Gill.  (Md.)  2(>1,  wlicre  the  pro- 
prietors were  comi)clled  to  pay. 

"  Jeup  V.  State  Fire  Marshal 
(1914),  182  Mich.  231;  148  X.  W. 
340.  A  statute  regulating  the 
operation  and  construction  of 
tlieatres  and  moving  picture  ex- 
hibitions, providing  for  lire  in- 
spection and  issuance  of  licenses 
was  held  constitutional  as  it  did 
not  conflict  with  provisions  of 
the  constitution  prohibiting  pius- 


sage  of  local  or  special  acts  or  in- 
vade the  constitutional  require- 
ments for  municipal  charters  and 
local  self-government. 

"  Roumfort  Co.  v.  Delanerj 
(1911),  230  Pa.  St.  374;  79  Atl. 
653.  An  act  requiring  exits,  fire 
escapes,  fire  extinguishers  for 
buildings  used  as  theatres  and 
other  places  where  the  pubUc  as- 
sembled was  held  valid. 

R.  V.  Ilannay  (Eng.)  (1891), 
2  (J.  B.  709.  The  authorities 
may  demand  that  changes  be 
made  in  the  building  to  reduce 
lire  hazards. 

=♦  For  liability  to  penalties  for 
infraction  of  the  fire  vegxdationH 
see:  Fire  Department  v.  Hill 
(1891),  14  N.  Y.  Supp.  158;  Fire 
Department  v.  Stetson  (1887), 
14  Daly  (X.  Y.),  12.5.  ^Vllere  the 
lessees  and  managers  were  held 
liable  even  though  the  house  had 
been  leased  away  for  a  period. 


370 


THE    LAW   OF   MOTION    PICTURES 


Section  114. — Admission  of  children. 

The  hcensing  power  may  regulate  how  and  when  and 
under  what  conditions  children  may  be  admitted  to  a 
theatre.  In  many  states  and  cities  statutes  and  ordinances 
have  been  passed  making  the  admission  of  a  child  without 
a  guardian  a  criminal  offense.^^  In  such  case,  however,  a 
''guardian"  has  been  construed  as  not  necessarily  being 
a  legal  guardian,  but  as  meaning  even  a  neighbor  or 
friend.-^ 

The  fact  that  the  person  admitting  the  minor  is  de- 


■^^  People  V.  Trippi  (1912), 
152  A.  D.  (N.  Y.)  717;  137  N.  Y. 
Supp.  599.  The  conviction  of 
defendant  for  admitting  minors 
under  the  age  of  sixteen  to  a 
moving  picture  show  in  viola- 
tion of  section  484  of  the  Penal 
Law  of  New  York  was  sustained. 

See  also:  People  v.  Jensen 
(1904),  99  A.  D.  (N.  Y.)  355; 
90  N.  Y.  Supp.  1062;  aff'd  181 
N.  Y.  571;  74  N.  E.  1122. 

26  People  ex  rel.  Jacques  v.  Fla- 
herty (1907),  122  A.  D.  (N.  Y.) 
878;  107  N.  Y.  Supp.  415;  aff'd 
191  N.  Y.  525;  84  N.  E.  1118. 
Under  a  statute  providing  that 
"a  person  who  .  .  .  admits  to 
or  allows  to  remain  in  any  .  .  . 
theatre  .  .  .  owned,  kept  or  man- 
aged by  him  in  whole  or  in  part," 
any  minor  under  the  ago  of  sLv- 
toon  uiiloss  accompanied  by  its 
parent  or  guardian  was  guilty  of  a 


misdemeanor.  Held  that  the  ticket 
taker  was  not  included  as  one  of 
the  persons  liable  under  the 
statute. 

See  also:  People  v.  Sammck 
(1908),  127  A.  D.  (N.  Y.)  209; 
111  N.  Y.  Supp.  11,  for  a  con- 
struction of  the  above  mentioned 
statute.  The  court  held  that  the 
owner  of  a  motion  picture  theatre 
could  not  be  convicted  under  the 
statute  where  there  was  no  proof 
that  the  place  was  injurious  to 
the  health  and  morals  of  the 
minors.  The  court  also  held  that 
the  word  "guardian"  in  the  stat- 
ute did  not  necessarily  refer  to  a 
legal  guardian  but  might  refer 
to   a   neighbor   or   friend. 

To  the  same  effect  as  the  ]mn- 
cipal  case  is  People  ex  rel.  Jacques 
V.  Sheriff  (1907),  122  A.  D.  (N. 
Y.)  878;  107  N.  Y.  Supp.  415;  alT'd 
191  N.  Y.  525;  84  N.  E.  1118. 


UKCILATION    A.MOl  .\TlN(i    T(J    I'UUHIlilTKJ.N 


;i7i 


coivod  as  to  liis  age  is  no  defense  for  a  violation  of  the 
statute.-' 

The  hcense  may  als(j  provide;  that  rliildrcn  under  a 
specified  a^e  shall  not  Ijo  admitted  after  a  certain  hour 
of  th(>  niirlit.'-'^ 


Section  115. — Regulation  amounting  to  prohibition. 

In  Illinois  it  has  been  dehnitely  settled  that  the  power 
to  regulate  does  not  include  the  power  to  prohibit;  if  it  is 
sought  to  i)rohibit,  a  nuisance  must  be  estabhshed.-"^  And 
this  rule  has  been  followed  in  several  of  the  other  states 
of  the  union. ^° 


^  Rex  V.  Palon  (Can.)  (1911), 
20  Out.  W.  Kcp.  533. 

**  Theatre  I)c  Luxe  v.  G  led  hi  II 
(Eiig.)  (1915),  31  T.  L.  R.  138. 

*»  Xahser  v.  City  of  Chicago 
091G),  271  111.  2.S8;  111  N.  E. 
119.  Clause  11  of  the  ordinance 
gives  the  city  the  same  jxiwer  in 
that  rcsjxict  as  the  state  ijosscsscd, 
which  is  similar  to  the  Ameiula- 
tory  Act  of  1901  of  the  Laws  of 
New  York  whore  the  Hoard  of 
Aldermen  of  New  York  City  was 
given  power  to  pa.ss  ordinances 
of  a  restrictive  character  ui"K»n 
places  of  amusomont  within  the 
City  of  Now  York. 

In  tills  case  it  is  held  that  it 
would  he  a  valid  exercise  of  the 
police  iH)wcr  to  enact  a  law  pro- 
hibiting a  motion  picture  sliow 
within    200    feet    of    a    church, 


since  such  a  sIkjw  in  such  proxim- 
ity would  constitute  a  nui.><uice. 
See  also:  People  v.  Bmse  (190<>), 
240  111.  33S;  88  X.  E.  831;  (1910), 
248  111.  11;  93  N.  E.  327. 

'«A'n'er  v.  Mayor  etc.  (1914), 
21)  Col.  App.  150;  141  Pac.  505. 
//(/'/  that  a  local  ordinance  regu- 
lating the  running  of  motion- 
jiicturc  theatres  wjis  void  .us  it 
nhsoliitely  prohibited  the  same  in 
the  discretion  of  the  local  authori- 
ties. 

See  also:  Matter  of  O'Rourkc 
(1894),  9  Mi.sc.  (N.  Y.)  564; 
30  X.  Y.  Supp.  375. 

But  sec  in  this  connection: 
Iliygim  v.  Lacroix  (1912),  119 
Minn.  145;  137  X.  W.  417.  "To 
say  the  Iciust,  opinions  are  quite 
at  variance  a.s  to  the  merits  of 
moving  picture  shows  as  an  in- 


372 


THE    LAW   OF   MOTION   PICTURES 


This  rule,  however,  does  not  deprive  the  Ucensing  power 
from  prohibiting  motion  picture  exhibitions  or  other  forms 
of  amusement  in  certain  parts  of  a  town  or  city.^^ 

Section  1 1 6. — Prohibition — Immorality. 

It  is  within  the  pohce  power  of  the  state  to  prohibit 
the  exhibition  of  any  picture  that  is  hcentious,  obscene, 
corrupt,  seditious  or  apt  to  cause  riots  and  disturbances, 
and  this  power  may  be  delegated  to  the  municipaUty.^^ 


fluence  for  good  or  evil  in  a  com- 
munity. It  must  therefore  be 
classed  among  those  pursuits 
which  are  liable  to  degenerate 
and  menace  the  good  order  and 
morals  of  the  people,  and  may 
therefore  not  only  be  licensed  and 
regulated,  but  also  prevented  by 
a  village  council." 

"  Dreyfus  v.  City  of  Mont- 
gomery (1912),  58  So.  (Ala.)  730. 
Ordinance  prohil)iting  motion  pic- 
ture shows  in  certain  parts  of  a 
city  was  held  valid. 

See  also:  Section  110,  p.  364,  for 
in.stances  where  licenses  were 
refused  because  of  proximity  to  a 
church  or  school. 

"  Sociological  Research  v.  Waldo 
(1914),  83  Misc.  (N.  Y.)  605;  145 
N.  Y.  Supp.  492.  The  police 
inU'rfrrcd  with  the  exhibition  of 
pluintifT's  film,  "Tlie  Inside  of  the 
Wliitc  Slave  Traflic,"  descril)ing 
the  working  of  prostitutes.    Tliis 


action  was  brought  in  equity  to 
enjoin  the  police  from  interfering 
with  the  exhibition  of  the  pic- 
ture. Held  that  a  court  of  equity 
would  not  interfere  with  the 
police  in  enforcing  the  criminal 
law.  Held  further  that  the  ex- 
hibition of  a  picture  of  the  kind 
in  question  was  not  entitled  to 
protection  by  a  court  of  equity. 

City  of  Chicago  v.  Shaynin 
(1913),  258  111.  69;  101  N.  E.  224. 
A  municipal  corporation  may  pro- 
hil)it  the  giving  of  exhibitions 
which  tend  to  corrupt  public 
morals  or  piindcr  to  morbid  tastes 
and  arouse  the  sexual  desires. 

Block  v.  City  of  Chicago  (1909), 
239I11.251;87N.  E.  1011.  Holds 
that  the  city  of  Chicago  may 
regulate  motion  picture  theatres 
so  as  to  prohibit  tlie  exhil)iti()n 
of  immoral  or  obscene  pictures. 

Brewer  v.  Wy?we  (1913),  163 
N.  C.  319;  79  S.  E.  629.    Action 


rROMIIUTION       IMMORAMTV 


373 


It  is  no  dofonso  to  alloRo  that  the  picture  teaches  a  moral 
lesson,''''  nor  need  tliere  be  any  exposure  of  the  i)erson  to 
niai\e  it  ol)scene." 


fur  falso  arrost  and  imprisonment. 
The  dofciulaiit  Stcll,  chief  of 
pwlice,  arrested  plaintiff  under  a 
statute  permittiuR  the  police  to 
prevent  or  suppress  an  indecent 
or  immoral  show,  without  a  war- 
rant, where  the  exhibition  was 
imminent.  Held  that  such  a 
statute    was    constitutional. 

Universal  Fi!m  Mfg.  Co.  v. 
Bell  (1017),  X.  Y.  Law  Journal, 
June  5,  (Ireenbaum,  J.  The 
jiliotoplay  involved  was  entitled 
"The  liand  that  Rocks  the 
Cradle." 

See  excerpt  from  opinion  on  p. 
355. 

Mesaage  Photo  Plat/  Co.  v.  Bell 
(1917),  New  York  Appellate  Divi- 
f?ion,  N.  Y.  Law  Journal,  July  20. 
The  court  on  appeal  refused  to 
interfere  with  a  license  commis- 
sioner who  threatened  to  revoke 
the  license  of  a  theatre  where  the 
exhibition  of  a  photoplay  en- 
titled "liirth  Control"  was  in 
contemplation. 

^*  People  V.  Doris  (1898),  14 
A.  D.  (N.Y.)  117;43N.  Y.  Supp. 
571;  appeal  dismis.se(l  153  N.  Y. 
078;  48  N.  K.  IIOO.  A  pan- 
tomime  entitled    "Uran>j;e    Blos- 


Sec  excerpt  contained  on  pp. 
35:i  and  3.54. 

See  in  this  connection:  (!cne»ec 
Recreation  Co.  v.  Edgerlon  (1916), 
158  X.  Y.  Supp.  421;  Fox  v.  Mc- 
Clellan  (1<K)9),  02  Misc.  (X.  Y.) 
100;  114  X.  Y.  Supp.  594;  Kden 
Mmee  Co.  v.  Bingham  (1<K)8), 
125  A.  D.  (X.  Y.)  380;  110  N.  Y. 
Supp.  210. 

"  Genesee  Recreation  Co.  v. 
Edgerlon  (1916),  158  N.  Y.  Supp. 
421.  Even  though  a  motion 
picture  may  teach  a  moral  les.son, 
it  does  not  neces.sarily  follow  tliat 
the  exhibitif)n  may  not  ofTend 
against  public  decency. 

Anli-Vice  Motion  Picture  Co., 
Inc.,  V.  Bell  (1916),  N.  Y.  Law 
Journal,  September  22.  "Appli- 
cation for  an  injunction  pendente 
lite  to  restrain  the  defendant 
from  interfering  with  the  exhibi- 
tion by  the  plaintitT  of  a  motion 
picture  photoplay  entitled  'Is 
any  Girl  Safe?'  The  Commis- 
sioner of  Licen.scs  of  the  City  of 

soms,"  showing  the  retiring  of  a 

coujile  upon  their  wedding  night 
was  held  a  public  nuisance  even 
though  there  was  no  indecent 
exposure  of   the   person. 


374 


THE    LAW   OF   MOTION   PICTURES 


New  York  asserts  the  right  to 
prohibit  the  exhibition  of  this 
play  upon  the  ground  that  it  is 
immoral  and  indecent  and  in 
violation  of  law;  in  other  words, 
that  it  would  tend  to  the  cor- 
ruption of  the  morals  of  the  public 
under  section  1140a  of  the  Penal 
Law.  The  film  or  photoplay  is 
now  being  produced  at  one  of  the 
city  theatres  and  it  depicts  the 
methods  by  which  certain  types 
of  men  procure  young  girls  for 
houses  of  prostitution.  It  further 
pictures  scenes  in  a  house  of 
prostitution  and  purports  to  show 
how  young  girls  are  led  to  ruin. 
The  papers  in  opposition  con- 
vince me  that  if  the  play  is  not 
of  a  revolting  character,  it  cer- 
tainly has  many  objectionable 
features,  all  of  which  are  sufficient 
to  condemn  it.  One  affidavit 
sets  forth  that  the  play  is  a  crude 
presentation,  wholly  devoid  of 
moral  or  educational  value,  and 
that  it  caters  to  the  lower  and 
sensual  side  of  lunnan  nature. 
Communications  from  many  rep- 
utable citizens  interested  in  tlic 
welfare  of  the  stage  and  of  mo- 
tion pi(;tiiro  theatres  condemn 
tliis  effort  to  ajjpoal  to  a  morbid 
public  taste.  The  statements 
of  these  people,  many  of  them 
experienced  in  tlio  work  of  sct- 
liiiK  j»roi)er  standards  for  moving 


picture  houses  and  the  produc- 
tions made  therein,  and  in  pro- 
tecting the  morals  of  society, 
particularly  the  young  members 
thereof,  are  of  the  utmost  im- 
portance on  this  application. 
The  preponderance  of  proof  ad- 
duced herein  shows  that  the 
City  of  New  York  is  not  bene- 
fited by  such  a  realistic  depiction 
of  the  sordid  side  of  human  life. 
The  declaration  is  made  in  behalf 
of  the  scenario  that  'it  is  literally 
a  picturized  sermon.'  Such  a 
statement  does  not  appeal  to  me. 
Moving  pictures  may  point  a  way 
or  teach  a  lesson,  but  no  depicted 
film  that  leads  the  beholder 
through  scenes  of  such  depravity 
and  degradation  can  influence 
or  help  society.  I  think  that 
such  a  play  offends  public  de- 
cency and  tends  to  the  injury  not 
only  of  the  young  of  the  com- 
munity, but  of  all  persons  who 
witness  it.  It  tends  to  deprave 
and  corrujit  the  morals  of  those 
wliose  minds  are  open  to  such 
influences.  Even  if  there  was 
nothing  so  openly  displayed,  as  is 
here  claimed  on  behalf  of  the  de- 
fendant, there  is  danger  in  an 
appeal  to  the  imagination,  and 
wlien  the  suggestion  is  immoral, 
the  more  that  i^  left  to  the 
imagination  tlic  more  subtle  and 
seductive  is  the  infiucMice.    People 


rHOHIIUTION       IMMORALITY 


37.1 


V.  Don.s,  11  App.  Div.  1 10.  More- 
over, the  act  t)f  the  commissioner 
of  Hcenses  in  acting  in  the  manner 
complained  of  is  rea-sonable  and 
is  a  proper  exercise  of  the  powers 
vested  in  him.  The  courts  of 
this  state  Jiave  reixjatedly  held 
that  they  will  not  interfere  with 
the  exercise  of  the  discretion 
vested  by  law  in  a  departmental 
official  unless  such  official  has 
abused  his  discretion  by  acting 
in  an  unreasonable  and  tyrannical 
manner.  People  ex  rel.  Rota  v. 
Baker,  136  App.  Div.  7;  People 
ex  rel.  Armstrong  v.  Murphy,  Go 
App.  Div.  123,  The  defendant 
shows  that  the  photoplay  is  not 
a  proper  production  to  be  pre- 
sented in  licensed  theatres  of  this 
city,  and  the  motion  is  denied." 
For  a  "war  picture"  see  Life 
Photo  Film  V.  Bell  (1915),  90 
Misc.  (N.  Y.)  469;  154  X.  Y. 
Supp.  763.  "Plaintiff,  a  manu- 
facturer and  lessor  of  photoplays, 
made  and  j^laccd  upon  the  market 
a  film  entitled  "The  Ordeal." 
The  film  jx)rtrayed  events  which 
presumably  occurred  during  the 
Franco-Prussian  war.  The  de- 
fendant, the  commissioner  of  li- 
censes, threatened  to  revoke  the 
license  of  any  theatre  which  ex- 
hibited the  film  upon  the  grountl 
that  because  of  the  unfavorable 
manner    in    which    the    German 


soldiers  were  portrayed  ujxjn  the 
screen,  the  exhibition  of  the  film 
might  arouse  racial  strife.  In 
granting  an  injunction  enjoining 
the  commissioner  from  in  any- 
wise interfering  with  the  film  the 
court  .said:  "Being  of  the  opin- 
ion that  the  play  itself  Is  not 
offensive  to  any  person  of  ordi- 
nary .sense  and  that  it  is  a  perfectly 
proper  play  in  all  respects  to  l>e 
put  before  the  public,  and  it  ap- 
pearing that  the  judgment  of  the 
defendant  in  preventing  its  ex- 
hibiticm  according  to  defendant's 
brief  is  bascil  ujion  the  judgment 
of  an  un(jfficial  body  and  his 
deputy,  Mr.  Kaufman,  and  not 
upon  his  own,  and  that  by  de- 
fendant's own  testimony  the  play 
is  unobjectionable,  and  that  the 
reason  assigned  by  defendant 
himself  is  insufficient  to  justify 
him  in  refusing  to  allow  it-s  ex- 
hil^ition,  and  that  unless  defend- 
ant is  restrained  there  will  \)C 
no  way  by  which  the  plaintiff, 
as  matter  of  right,  will  be  able  to 
tost  the  question.  I  feel  in  jus- 
tice to  the  plaintiff  that  the  de- 
fendant should  \)C  restrained  and 
that  the  relief  pmye<l  for  in  the 
complaint  be  granted." 

Stein  V.  Bell  (1917),  X.  Y.  L:\w 
Journal,  May  2.  "An  injunction 
is  sought  to  prevent  official  inter- 
ference  wth    the    plaintiff's   at- 


376 


THE   LAW   OF  MOTION   PICTURES 


tempt  to  produce  a  plaj'  entitled 
'The  Awakening  of  Spring,'  the 
defendant,  the  commissioner  of 
licenses,  having  announced  his 
purpose  of  revoking  the  license 
of  the  theatre  chosen  for  the  per- 
formances should  the  plaintiff 
persist  wdth  the  production. 
While  a  point  is  made  that  the 
threatened  revocation  of  the  li- 
cense would  be  excessive  of  the 
commissioner's  powers,  the  stat- 
ute and  the  ordinances  apparently 
afford  him  discretionary  author- 
ity so  to  proceed  (Charter,  sec, 
641;  Laws  1914,  chap.  475;  Code 
of  Ordinances,  June  20,  1916, 
chap.  14,  art.  1,  sees.  2  and  5; 
chap.  3,  art.  1,  sees.  1,  2  and  3; 
Edelslein  v.  Bell,  91  Misc.  620). 
That  the  disapproval  of  this 
play  is  not  an  abuse  of  discretion 
is,  to  my  mind,  hardly  open  to 
argument.  As  addressed  to  the 
senses  of  a  general  audience  it 
offends  public  decency.  If  in- 
tended for  parents  as  a  warning 
to  in.struct  their  children  in  sexual 
matters  there  is  no  promise  that 
the  audience  is  to  be  limited  to 
parents.  Apparently  the  young 
are  to  be  eciually  enlightened  by 
the  i)lay  without  giving  the  par- 
ents a  prior  choice  of  some  less 
turgid  channel  of  education, 
Tnio,  the  plaintiff  is  not  without 
the    support    of    several     well- 


meaning  and  intelligent  persons  in 
his  opinion  that  the  dramatiza- 
tion of  these  sex  questions  will 
serve  a  good  end,  but  it  appears 
to  me  that  the  subject  is  thus 
approached  only  from  the  stand- 
point of  an  adult's  ability  to 
reject  indecent  suggestions  while 
assimilating  the  moral  to  be 
drawn  from  patent  uncleanliness. 
The  inquiring  mind  of  youth  has 
not  this  balanced  equipment  and 
is  quicker  to  seize  upon  what  is 
novel  than  to  indulge  in  the  ab- 
stractions of  a  more  or  less  ob- 
scured philosophj\  A  general 
audience  of  theatregoers  will  see 
what  is  to  be  seen  and  take  the 
obvious  impressions  from  what 
is  to  be  heard.  Some  may  find 
a  moral  in  this  play  which  is 
beneficial;  the  majority,  par- 
ticularly the  younger  element, 
would  find  in  the  portrayal  only 
what  is  portrayed — a  pruriency 
attributed  as  typical  of  youth — 
to  which  type,  happily,  many  do 
not  conform.  The  play  has  been 
acted  for  my  advisement  upon 
this  application,  and  I  have  also 
read  the  text.  My  judgment 
upon  the  subject  being  invited, 
I  express  the  view  that  such  a 
j)Iay  has  no  projxT  place  upon  the 
stage  of  a  public  theatre  and  does 
infinitely  more  harm  than  good. 
Motion  for  injunction  denied." 


PROHiniTION—  IMMOUAMTV 


:i77 


Even  whore  the  picture  is  in  itself  liarniless  but  th( 
title  and  posters  are  suggestive,  it  has  been  held  that  tin 
picture  should  be  suppressed.^'' 

**  Ivan     Film     Productions     ' 


Bill  (191G),  X.  Y.  Law  Journal, 
December  o.  "This  is  a  motion 
for  an  injunction  pendente  lite 
restraining  the  commissioner  of 
licenses  from  prohibiting  or  in- 
terfering in  any  manner  with  the 
plaintilTs  in  the  exhibition,  pres- 
entation or  production  of  a  cer- 
tain film  or  motion  picture  photo- 
play entitled  "The  Sex  Lure." 
The  position  taken  by  the  de- 
fendant is  correctly  stated  in  the 
brief  of  the  corporation  counsel 
to  be  this:  "The  commissioner 
objects  to  theatres  under  his 
jurisdiction  producing  said  play 
on  account  of  the  title  and  the 
method  of  advertising  the  same. 
The  affidavits  in  opposition  show 
clearly  that  the  title  of  the  play, 
'The  Sex  Lure,'  and  the  method 
of  advertising  are  an  offen.se 
against  morality,  decency  and 
public  welfare,  and  that  the  title 
of  the  photo-play  and  the  method 
of  advertising  are  purely  for  the 
purpose  of  holding  out  to  the 
puljlic  that  the  photo-play  is  of 
an  indecent  character,  thus  cre- 
ating an  immoral  curiosity  a.s 
to  the  nature  of  the  same." 
That  there  is  notliing  objection- 


able about  the  photo-play  it.self 
is  distinctly  statetl  in  the  c<jm- 
missioner's  affidavit,  in  which 
he  says:  "I  learne<i  from  the 
report  made  to  me  by  the  deputy 
commissioner  that  the  film  itself 
was  such  that  a  production  of  the 
same  in  the  theatres  of  this  city 
could  be  had  without  harmful 
results."  The  question  presented, 
therefore,  is  whether  the  com- 
missioner of  licen.ses  has  power 
to  revoke  the  Ucense  of  a  theatre 
simply  upon  the  ground  that  the 
name  (jf  the  play  and  the  methods 
of  advertising  on  billl>oards  and 
elsewhere  are  objectionable.  The 
power  of  the  commissioner  of 
licenses  to  suspend  or  revoke  any 
license  or  permit  Issued  by  him  is 
undoubted,  but  it  is  ecjuully 
clear  that  the  power  cannot  be 
exercised  arbitrarily  or  upon 
grounils  that  are  entirely  foreign 
to  the  commissioner's  jurisdic- 
tion. The  commi.ssioner's  juris- 
diction for  his  official  action  in 
this  ca.se  must  be  found  in  sec- 
tion 41,  chapter  3,  article  2,  of 
the  C(xle  of  ()rdinanc(^s  of  the 
City  of  New  York,  which  reads 
as  follows:  "Sec.  41.  Public 
Morals.     The  inspectors  of  the 


378 


THE    LAW   OF   xMOTION   PICTURES 


department  of  licenses  shall  in- 
\'estigate  the  character  of  exhibi- 
tions in  motion  picture  theatres 
and  open  air  motion  picture 
theatres,  and  shall  report  to  the 
commissioner  any  offense  against 
morality,  decency  or  public  wel- 
fare committed  in  said  exhibi- 
tions." Plainly  it  is  the  "char- 
acter of  exhibitions"  and  offenses 
"committed  in  said  exhibitions" 
wliich,  under  this  section,  con- 
stitute the  subject  matter  of  the 
commissioner's  jurisdiction.  The 
method  of  advertising  a  play  may 
be  disgusting,  offensively  sen- 
sational and  even  dishonest,  either 
on  billboards  or  in  the  newspapers 
or  elsewhere,  but  this  has  nothing 
to  do  with  the  character  of  the 
exhibition  itself  and  is  obviousl}'' 
not  an  offense  committed  in  the 
exhibition.  Whether  it  is  de- 
sirable and  necessary  to  give  the 
commissioner  of  licenses  juris- 
diction over  methods  of  adver- 
tising and  the  selection  of  names 
for  plays  is  not  for  the  court  to 
say.  Plainly,  however,  no  such 
autliority  has  been  vested  in  the 
commissioner,  and  he  has  no 
more  legal  right  to  revoke  the 
license  of  a  theatre  on  these 
grounds  than  he  would  have  be- 
cause the  mf»r:il  chnraftor  of  flie 
authfjr  of  a  play  or  of  the  actors 


employed  to  produce  it  was  bad. 
If  it  appeared  that  the  title  of 
the  play  was  exhibited  in  the 
theatre  as  a  part  of  the  film  or 
production,  a  different  question 
might  be  presented,  but  there  is 
no  proof  that  such  is  the  case. 
There  is  another  feature  of  this 
case,  however,  that  should  be 
considered.  That  the  name  and 
the  method  of  advertising  invite 
the  public  to  a  prurient  and  dis- 
gusting performance  is  only  too 
obvious.  The  performance  it- 
self, however,  is  said  to  be  a 
clean  one,  as  indeed  it  would 
have  to  be  to  obtain  the  sanction 
of  the  commissioner.  So  it  is 
established  that  the  plaintiff  is 
inviting  the  public  to  the  theatre 
upon  false  pretenses  and  seeking 
to  capitalize  whatever  degenerate 
interest  there  may  be  created  by 
tiie  use  of  this  name  and  the 
posters  that  go  with  it.  Further- 
more, the  name  and  the  posters 
taken  together  are  indecent,  nasty 
and  offensive.  Such  practices 
result,  too,  in  bringing  odium 
unjustly  upon  the  many  re- 
spectable members  of  the  im- 
portant motion  picture  industry. 
The  plaintiffs  do  not  come  into 
court  with  clean  Imnds,  and  upon 
this  ground  the  motion  for  an 
injunction  is  denied." 


WHO    IS    LIABLE    FOR    PKNALTV 


379 


Pictures  that  tend  to  croato  race  fcelinp;  and  threaten 
disturl)ances  of  the  i)eace  may  be  prohibited,'"''  as  well 
as  exhibitions  of  prizefighting." 

On  the  other  hand,  it  has  been  held  tliat  ballet  dancing 
does  not  constitute  ground  for  suppression.^'' 

Section  117. — Who  is  liable  for  penalty. 

The  courts  have  held  proprietors  of  places  of  amusement 
to  a  strict  accountability  for  violations  of  statutes  gov- 
erning the  licensing  and  control  of  such  places  and  have 


^*  Bainbridgc ,  Jr.  v.  City  of 
Minneapolis  (1915),  131  Minn. 
195;  154  N.  W.  964.  On  an  at- 
tempt to  enjoin  tlie  Mayor  from 
revoking  the  license  of  a  theatre 
wherein  tlie  film  "The  Birth  of  a 
Nation"  was  about  to  be  pro- 
duced. 

Edchlein  v.  Bill  (1915),  91 
Misc.  (N.  Y.)  G20;  155  N.  Y. 
Supp.  590.  The  court  refused 
to  interfere  with  the  exercise 
of  discretion  rested  in  the  Com- 
missioner of  Licenses  wlierc  he 
refused  to  grant  a  license  per- 
mitting the  exhibition  of  a  photo- 
play entitled  "The  Frank  Ciuse" 
based  on  the  incidents  of  the 
famous  murder  trial  in  (Jeorgia. 

^nVebcr  v.  Freed  (1915),  2.39 
II.  S.  325.  Held  that  Congress 
had  power  to  prohibit  the  in- 
troduction, imix)rtation  or  trans- 
portation   from    abroail    of    any 


tangible  object,  and  that  prize- 
fight films  of  the  Willard-Johnson 
fight  came  under  that  prohibi- 
ti(jn. 

Knlisthenic  Ex.  Co.  v.  Emmons 
(1915),  225  Fed.  (D.  C.)  902; 
atT'd  229  Fed.  (C.  C.  A.)  124. 
Plaintiff,  tlie  owner  of  negative 
films  of  the  Willard-Johnson  prize- 
fight, sought  to  make  entry  of 
them  with  the  defendant,  col- 
lector of  the  port  of  Portland,  Me. 

The  court  hold  that  under 
Section  1041(i  of  the  U.  S.  Com- 
I)iled  Statutes  of  1913  this  film 
could  not  be  brought  in. 

"  The  King  v.  Mc.Xuliffe  (Can.) 
(1904),  S  Can.  Cr.  Cas.  21.  Ballet 
dancing  is  not  in  itself  indecent 
and  in  order  to  convict  the  pro- 
prietor of  a  theatre  of  conducting 
an  immoral  show,  affirmative 
evidence  {»f  iiuleconcv  and  ob- 
.scenity  must  lie  pro<.iuced. 


380 


THE    LAW   OF   MOTION    PICTURES 


not  permitted  them  to  relieve  themselves  of  liability  by 
showing  that  they  were  not  guilty  of  the  wrongful  acts, 
or  that  they  had  no  knowledge  of  the  misdeeds.^^ 

In  a  case  where  an  ordinance  prohibited  the  proprietor 
of  a  place  of  amusement  from  causing,  consenting  to, 
or  "allowing"  certain  exhibitions,  a  proprietor  was  held 
liable,  although  he  himself  did  nothing,  was  ignorant  of  the 
act  or  made  ineffectual  attempts  to  stop  the  wrongful  act.''° 

And  even  where  the  premises  had  been  let  to  some 
third  party  but  defendant  furnished  the  ushers  and  other 
employes  he  remained  liable."^ 

But  when  the  proprietor  gives  up  all  control  of  the 
premises  and  his  lessee  is  in  complete  possession  he  is 
not  hable.^2 


^"^  Bruce  v.  McManus  (1915) 
(Eng.),3K.  B.  1;  113  L.  T.  332; 
W.  N.  170;  79  J.  P.  294;  84  L.  J. 
(K.  B.)  1860;  31  T.  L.  R.  387;  13 
L.  G.  R.  727.  Even  though 
a  motion  picture  is  managed  or 
superintended  by  a  subordinate, 
the  owner  himself  is  liable  for  a 
penalty  under  the  statute. 

Hee  also:  Waldo  v.  Seclig  (1911), 
70  Misc.  (N.  Y.)  254;  12G  N.  Y. 
Supp.  798;  aff'd  146  A.  D.  (N.  Y.) 
879;  130  N.  Y.  Supp.  1133;  Pot- 
ter V.  Watt  (Eng.)  (1914),  84 
L.  J.  (K.  B.)  394;  79  J.  P.  212; 
112L.T.  508;31T.  L.  R.  84. 

<"  Matter  of  Hammer  stein  (1907), 
52  Misc.  (N.  Y.)  606;  102  N.  Y. 
Sii[)i).  9.50. 

*'  Fire     Department     v.     Hill 


(1891),  14  N.  Y.  Supp.  158.  De- 
fendant, lessee  of  theatre  prem- 
ises, had  let  to  another  the 
privilege  of  giving  performances 
for  four  weeks.  During  these 
performances,  persons  were  per- 
mitted to  stand  in  the  aisles  in 
violation  of  the  fire  regulations, 
and  suit  was  brought  for  a  pen- 
alty. Defendant  furnished  the 
ushers  and  other  employes. 

Defendant  held  liable,  even 
though  the  servants  were  under 
the  direction  of  tlie  manager  of 
the  performance,  and  he  claimed 
ignorance  of  the  infractions. 

l-'ollowing  Fire  Dept.  v.  Stetson 
(1SS7),  14  Daly  (N.  Y.),  125. 

*■  State  v..  French  Opera  Ass'n 
(1902),  107  La.  284;  31  So.  630. 


TICKET       SCALl'ING 


381 


Undor  a  ponal  statute  making  it  a  misdemeanor  to 
permit  a  child  under  a  specified  age  to  enter  a  place  of 
amusement  unless  accompanied  by  its  guardian,  a  mere 
ticket  taker  was  held  not  included  within  the  class  of 
persons  embraced  by  the  section.^'' 

Section  118.— Ticket  "  Scalping." 

Under  Act  of  March  18,  1905,  of  California,  known  as 
Penal  Code,  Sec.  52G,  it  was  declared  a  misdemeanor  to 
sell  or  offer  to  sell  any  tickets  of  admission  to  any  theatre 
or  other  place  of  amusement  at  a  price  in  excess  of  that 
charged  originally  by  the  management. 

This  statute  was  declared  unconstitutional  upon  the 
ground  that  it  prevented  the  free  disposition  of  i)roporty 
by  the  owner  thereof,  which  was  guaranteed  to  him  under 
the  state  constitution.''^ 


The  owner  of  a  theatre  is  not 
liable  for  a  tax  iiniKJsed  upon  the 
theatre  where  the  proix^rty  has 
been  leti-secl  to  a  tliird  party  and 
tlie  lessee  conducts  tlie  theatre. 

New  Castle  v.  Geukinger  (1908), 
37  Pa.  Super.  Ct.  21.  Where 
the  defendant  did  not  exliibit  an 
immoral  show,  but  merely  rented 
his  opera  house  to  another,  who 
without  his  knowledge  or  consent, 
gave  such  jx'rformances,  he  is 
not  liable,  and  a  judnmont  of  con- 
victionagainsthim  under  Sec.oiie, 
Act  1  of  ordinances  of  the  City 
of  New  Castle  approved  March 
22,  1904,  will  not  be  upheld. 

"  People    ex    rd.    Jacques    v. 


Sheriff  (1907),  122  A.  D.  (X.  Y.) 
878;  107  X.  Y.  Supp.  415;  aff'd 
191  X.  Y.  525;  84  N.   E.   1118. 

Section  290  of  the  Penal  Code 
of  Xew  York. 

On  the  question  whether  the 
license  uf  the  lessees  of  a  theatre 
covered  also  the  performers  see 
Shclhij  V.  Emerson  (1880),  4  I^ea. 
(Tenn.)  312.  "We  think  the 
license  includes  and  protects  the 
employes  of  the  managers,  who 
furnish  the  entcrtaimnents,  and 
the  minstrel  tr<)U|M^  is  but  an  I's- 
sential  agency  in  carr>'ing  on  the 
business  licensed." 

**I':x  parte  Qunrg  (190G),  149 
Cal.  79;  84  Pac.  7GG. 


382  THE    LAW   OF   MOTION   PICTURES 

Illinois  enacted  a  similar  statute.  This  statute  as  well 
was  declared  unconstitutional  as  an  abuse  by  the  state 
of  its  police  power.  The  court  held:  "There  is  nothing 
immoral  in  the  sale  of  theatre  tickets,  at  an  advance  over 
the  price  of  the  box  office.  Such  sale  is  not  injurious  to 
the  public  welfare  and  does  not  affect  the  public  health, 
morals,  safety,  comfort  or  good  order.  It  does  not  mjure 
the  buyer  or  proprietor  of  the  theatre.  The  buyer  pur- 
chases voluntarily.  He  is  under  no  compulsion.  If  the 
conducting  of  a  theatre  is  a  mere  private  business,  there 
is  no  reason  why  the  proprietor  may  not  sell  the  tickets 
when  and  where,  at  what  prices  and  on  what  terms  he 
chooses."  ^^ 

In  New  York  the  business  of  a  ticket  speculator  was 
held  to  be  a  lawful  occupation.^''  A  city  ordinance,  how- 
ever, making  it  a  misdemeanor  to  sell  tickets  on  the 
streets  in  front  of  any  licensed  theatre  or  place  of  amuse- 

*^  People  V.  Steele  (1907),  231  lie  health,  safety,  morals,  coin- 
Ill.  340;  83  N.  E.  236.  The  state  fort  or  s^iicral  welfare  of  the 
under  its  police  powers  has  a  right  public  and  such  laws  would  de- 
to  regulate  a  theatre  but  only  to  prive  those  engaged  in  such  busi- 
the  extent  that  it  may  regulate  ness  of  their  liberty  and  property 
any  otlier  private  business.  It  witliout  due  jirocess  of  hvw. 
may  impose  a  license  fee  and  pass  City  of  Chicago  v.  Powers 
such  regulations  as  will  safe-  (1907),  231111.  560;  83  N.  E.  240. 
guard  the  public  health,  safety,  Where  the  courts  of  the  state 
morals,  comfort  and  general  wel-  held  a  statute  forl)i(lding  "ticket 
fare  of  the  pubhc.  scalping"  to  l)e  void,  the  city  of 

But   the   legislature   may   not  Cliicago   could   not   pass   an   or- 

cnact  laws  to  prevent  speculation  dinance  of  like  effect, 

in     theatre     tickets,     frequently  *<>  People  v.   Marks   (1909),  64 

called  ".scalping"  as  such  legisla-  Misc.    (N.   Y.)   079;    120   N.   Y. 

tion  has  no  reference  to  the  pub-  Supp.  1106. 


censoiish;i»  3H3 

iiiciit  was  Ju'ld  constitutional  as  within  the  ijolice  powers  of 
the  niunicipahty." 

Section  119. — Censorship. 

We  have  seen  tliat  under  its  poHce  power,  the  different 
states  of  the  union  have  enacted  laws  regulating  the 
erection  and  operation  of  buildings  wherein  motion  picture 
exhibitions  are  contemplated  to  be  given. ''^  We  have 
also  noted  that  some  states  have  indirectly  controlled  the 
exhibition  of  the  motion  picture  itself  by  giving  to  those 
in  whom  thoy  have  vested  the  regulation  of  the  operation 
of  such  buildings,  discretionary  powers  in  withholding, 
granting  or  revoking  the  licenses  required  to  operate 
them.'^  Instances  have  been  also  given  where  the  police 
liave  been  u])held  by  the  courts  when  they  have  sup- 
pressed films  under  penal  statutes  proliibiting  the  giving 
of  obscene  or  inimoial  exhibitions,  or  because  such  ex- 
hibitions constituted  a  nuisance.''" 

Several  of  the  states  have  gone  one  step  further  and 
have  enacted  statutes  creating  boards  of  censorship,  the 
ai^proval  of  which  must  be  obtained  before  the  motion 
I)icture  may  be  exhibited  within  the  state.     Such  laws 

"People  ex  rcl.   Laiigc  v.  Pal-,  atir  pcrforriKmco  aiul  sells  thorn 

viilter  (1911),  71   Misc.   (X.  Y.)  as  and  for  tlic  tickets  of  the  maii- 

loS;  12S  N.  Y.  Supp.  426;  aff'd  aneinent  when  not  so  in  fact   is 

144  A.  D.  (X.  Y.)  804;  12S  X.  Y.  Ruilt)'    of    forgery    at    common 

Supp.  1140;  afT'd  202  N.  Y.  60S;  law. 
1)6  X.  E.  1126.  Se<!     also:     Comtiiontrtalth     v. 

See  in  this  connection:  licnson  limi  (IS.").')),  6*)  Ma.^^s.  441. 
V.  McMnhon  (ISSS),  127  U.  S.  4.')7;  "  Sec  Sections  1 10  to  117. 

SSup.  Ct.  1240.    One  who  causes  "  Si^;  Sections  107  to  110. 

to  be  printed  tickets  for  an  ojxir-  "*  See  Section  116. 


384  THE    LAW    OF   MOTION    PICTURES 

have  been  held  to  be  constitutional  and  a  proper  exercise 
of  the  police  power  of  the  state. 

The  first  case  to  reach  the  United  States  Supreme 
Court  and  which  declared  motion  picture  censorship  laws 
constitutional,  was  that  of  the  Mutual  Film  Corporation 
V.  Industrial  Commission  of  Ohio.^^  The  statute  involved 
was  one  enacted  by  the  legislature  of  Ohio,  creating  under 
the  authority  and  superintendence  of  the  Industrial  Com- 
mission of  the  state  a  board  of  censors  of  motion  picture 
films. 

Section  three  of  the  statute  made  it  the  duty  of  the 
board  to  examine  and  censor  those  films  which  were  to 
be  publicly  exhibited  within  the  state.  The  films  were 
required  to  be  exhibited  to  the  board  before  their  delivery 
to  the  exhibitor. 

Section  four  provided,  ''Only  such  films  as  are  in  the 
judgment  and  discretion  of  the  board  of  censors  of  a 
moral,  educational  or  amusing  and  harmless  character 
shall  be  passed  and  approved  by  such  board." 

Section  five  granted  authority  to  the  board  to  work  in 
conjunction  with  censor  boards  of  other  states  as  a  con- 
gress, and  permitted  the  action  of  such  congress  to  bo 
considered  that  of  the  state  board. 

Section  seven  imposed  penalties  for  the  exhibition  of 
motion  pictures  without  first  complying  with  the  statute. 

Section  eight  provided  for  a  review  of  the  action  of  the 
board  "as  is  provided  in  the  case  of  persons  dissatisfied 
with  the  orders  of  the  industrial  commission." 

'-^Mutual   Film    Corp.    v.    In-      iilso  opinion  of  tlic  lower  court 
diustrial  Com.  (Ohio)   (11)15),  2:^0      roportod  in  215  Fed.  138. 
U.  S.  230;  35  Sup.  VA.  387.    Sec 


CENROUSHII'  385 

Throo  ohjootions  a.s  to  tlio  constitutionality  of  tlie 
statute  woro  raised  by  the  ui)i)ellant. 

The  first  objection  was  that  the  statute  imposed  an 
unlawful  burden  uj)on  interstate  commerce.  The  court 
lield  that  when  the  film  was  Ijrought  into  the  state  for 
exhibition  therein,  and  sent  to  "exchanges"  to  be  deliv- 
ered to  the  exhibitors,  they  became  subject  to  the  laws 
of  the  state.  In  the  words  of  the  courts,  "There  must 
be  some  time  wlien  the  films  are  subject  to  the  law  of 
the  State,  and  necessarily  when  they  are  in  the  hands  of 
the  exchanges  ready  to  be  rented  to  exhibitors  or  have 
passed  to  the  latter,  they  are  in  consumption,  and  mingled 
as  much  as  from  their  nature  they  can  be  with  other 
I)roperty  of  the  State." 

The  appellant's  second  contention  was  that  motion 
picture  exliibitions  were  in  the  same  category  with  the 
press  and  that  any  censorship  thereof  was  a  violation  of 
freedom  of  speech  and  publication  guaranteed  by  the 
state  constitution. 

The  court  held  that  the  motion  picture  industry  was  a 
private  enterprise,  not  organized  primarily  for  the  pur- 
pose of  expressing  public  opinion,  but  on  the  contrar}' 
its  primary  aim  was  to  amuse  and  entertain.  It  further 
held  that  the  manufacture  and  exhibition  of  pictures  of 
an  educational  character,  were  merely  one  of  the  inci- 
dental branches  but  not  by  any  means,  the  main  branch 
of  the  industry. 

To  (luote  the  court:  "They  (motion  pictures),  indeed, 
may  be  mediums  of  thought,  but  so  arc  many  things. 
So  is  the  theatre,  the  circus,  and  all  other  shows  and  spec- 
tacles, and  their  performances  may  be  thus  brought  by 


386  THE    LAW   OF   MOTION    PICTURES 

the  like  reasoning  under  the  same  immunity  from  re- 
pression or  supervision  as  the  pubHc  press."  And  again, 
''It  cannot  be  put  out  of  view  that  the  exhibition  of 
moving  pictures  is  a  business  pure  and  simple,  originated 
and  conducted  for  profit,  like  other  spectacles,  not  to  be 
regarded  or  intended  to  -be  regarded  by  the  Ohio  con- 
stitution, we  think,  as  part  of  the  press  of  the  country 
as  organs  of  public  opinion." 

The  final  objection  to  the  statute  raised  by  the  Mutual 
Film  Corporation  was  that  the  statute  delegated  legis- 
lative powers  to  a  board  in  that  it  furnished  no  standard  of 
what  was  educational,  moral,  amusing  or  harmless,  and 
thus  left  the  decisions  of  the  board  to  their  ''arbitrary 
judgment,  whim  and  caprice,"  permitting  the  "personal 
equation"  to  enter  into  the  consideration  of  the  approval 
of  the  films.  The  court  brushed  aside  this  argument. 
It  summed  up  its  position  upon  this  objection  by  saying, 
"But  the  statute  by  its  provisions  guards  against  such 
variant  judgments,  and  its  terms  like  other  general  terms, 
get  precision  from  the  sense  and  experience  of  men  and 
become  certain  and  useful  guides  in  reasoning  and  con- 
duct. The  exact  specification  of  the  instances  of  their 
application  would  be  as  impossible  as  the  attempt  would 
be  futile.  Upon  such  sense  and  experience,  the  law  proj)- 
erly  relies  (citing  cases).  If  this  were  not  so,  the  many 
administrative  agencies  created  by  the  State  and  National 
governments  would  l)e  denuded  of  their  utility  and  gov- 
ernment in  some  of  its  most  important  exercises  become 
impossible." 

The  state  of  Kansas  also  passed  a  censorship  act  pro- 
iiibiting  the  exhibit  ion  of  any  molion  picture  fihn  unless 


CENSoicsHir  3S7 

i(  IkuI  first  been  submitted  to  and  ai^proved  by  the  .Super- 
iiilcndcnt  uf  Public  Instruction.  The  Supreme -Court, 
following  its  decision  in  the  Ohio  case,  lield  that  the  statute 
was  constitutional,  that  the  statute  was  a  valid  exercise  of 
the  police  power  of  the  state,  that  it  did  not  interfere 
with  hiterstate  commerce,  did  not  infringe  upon  the 
liberty  of  opinion  and  that  there  was  no  delegation  of 
legislative  power  to  administrative  officers." 

The  highest  state  court  of  Pennsylvania  held  that  a 
statute  re(iuiring  the  submission  of  all  films  to  be  ex- 
liibited  within  the  state  to  a  board  of  censors  was  con- 
stitutional.^^ 

Tlie  most  recent  case  upholding  the  constitutionality 
of  censorship  statutes  was  that  of  the  Mutual  Film  Cor- 
poration V.  City  of  Chicago,  et  al.-'^  An  ordinance  of  the 
City  of  Chicago  provided  that  no  motion  picture  should 
be  exhibited  in  any  public  j^lace  without  first  submitting 
the  film  to  the  censorshij)  of  the  police.  The  court  held 
the  ordinance  constitutional  upon  the  authority  of  the 
two  above  mentioned  cases  decided  by  the  United  States 
Supremo  Court. 

T.ouisiana  has  a  censorshij)  law  u])()n  its  statute  books 
authorizing  any  city,  town  or  village  of  the  state  to  adopt 
any  ordinance  for  the  regulation  by  censorship  of  motion 
picture^  theatres  and  all  other  ]ilaces  wherein   films  are 

''^^  MiUiuU  Film  y.  Iloilycs  (Kan-       (11)1.")),     L>.-)()     I'a.     L'-J.");     <».")    All. 
sius)    (lUlo),   2;iG   U.   S.   •JIT;   .{.J      4X1 
Sup.  Ct.  ;i\Y.i.  ■-'  MiUimI  Film  v.  ('ity  of  Chi- 

<•' Bujfato     lir.      V.      Ihritinyir      ruj/u  (19ir)),  224  Fetl.  (C.  C.  A.) 

101. 


388  THE    LAW    OF   MOTION   PICTURES 

exhibited.  ^^  The  statute  has  not  yet  come  before  the 
courts  as  to  its  constitutionahty. 

Attempts  have  been  made  to  secure  the  passage  of  a 
bill  through  Congress  establishing  a  Federal  census  board, 
but  up  to  the  present  writing  Congress  has  not  seen  fit  to 
legislate  upon  that  subject.  Although  Congress,  under 
its  control  of  interstate  commerce,  probably  has  the  con- 
stitutional right  to  require  all  films  shipped  through  the 
different  states,  to  be  submitted  to  a  Federal  board  of 
censors,  it  is  doubtful  whether  it  will  exercise  its  rights. 
It  will  probably  leave  the  censoring  of  films  to  state  boards, 
which  can  take  into  consideration  the  habits,  prejudices 
and  modes  of  thought  pecuhar  to  the  state  in  which  they 
act. 

Congress  has  already  enacted  a  law  prohibiting  the 
transportation  from  one  state  to  another  or  the  importa- 
tion into  this  country  of  films  representing  prize  fights  and 
other  pugilistic  encounters  for  purposes  of  public  ex- 
hibition.^^   And  that  statute  has  been  held  to  be  con- 

^5  Acts  of  Louisiana,  1914,  company  or  otlicr  common  car- 
(Special  Session  of  1913),  Act  ricr  for  carriage,  or  to  send  or 
No.  ISO,  July  9,  1914.  carry  from  one  State  or  Terri- 
es Act  of  July  31,  1912,  Chapter  tory  of  the  United  States  or  the 
263,  Sections  1 ,  2, 3;  37  Stat.  240;  District  of  Columbia  to  any  other 
(United  States  Compiled  Stat-  State  or  Territory  of  the  United 
utes  of  1910,  Sections  10410,  Statesor  the  District  of  Columbia, 
10417,  10418,  pp.  12S56,  12857.)  or  to  bring  or  to  cause  to  be 
Sec.  lO/flO.  "It  shall  be  un-  brought  into  the  United  States 
lawful  for  any  person  to  deposit  from  abroad,  any,  film  or  other 
or  cause  to  bo  deposited  in  the  pictorial  representation  of  any 
United  States  mails  for  mailing  jjrize  light  or  encounter  of  pugi- 
or  delivery  f)r  to  deposit  or  cause  lists,  under  whatever  name,  which 
to  be  deposited  with  any  express  is  designed  to  be  used  or  may  be 


CENSORSHIP 


389 


stitutionnl,  undor  tho  fommorfo  rlaii^o  of  tho  rr)nstitu- 
tioii.'' 

Congress  has  also  provided  in  the  tariflf  act  of  1909  for 
a  censorsliip  by  the  Secretary  of  the  Treasury  of  all  films 
imported  into  this  country.  The  Secretary  of  the  Treas- 
ury, however,  has  not  as  yet  to  the  knowledge  of  the 
writers,  attempted  to  exercise  that  right. ^^  The  Circuit 
used  for  purposes  of  public  ex-      film    were    coiiternplatcti    to    l)e 


hibition." 

Sec.  10417.  "It  shall  be  uii- 
luwful  for  any  person  to  take  or 
receive  from  the  mails  or  any 
express  company  or  other  com- 
mon carrier  with  intent  to  sell, 
distribute,  circulate  or  exhibit  any 
matter  or  thiiip;  herein  forbidden 
to  l)e  deposited  for  mailing,  de- 
liver>',  or  carriage  in  interstate 
eonmierce." 

Sec.  1()',1S.  "Any  jwrson  viola- 
ting any  of  th(*  provisions  of  this 
act  shall  for  each  offense,  upon 
conviction  thereof,  be  fined  not 
more  than  one  thousand  dollars 
or  sentenced  to  imjirisonment 
at  hard  labor  for  not  more  than 
one  year,  or  both,  at  the  discre- 
tion of  the  court." 

Knlistheiiic  Exhibition  Co.  v. 
Emmon.'<  (1<)1.')),  22.")  Fed.  (D.  ('.) 
1)02;  aff'd  220  Fed.  (C.  C.  A.)  124. 
The  i)laintiff  sought  to  imjiort  a 
negative  film  of  a  prize  fight 
exliibition.  The  court  h(>ld  that 
where   tlie  jxisitive  prints  ui  the 


exhibited  before  "clubs,  societies, 
a.s.sociations,  athletic  clubs,  and 
their  guests"  and  no  limitation 
was  placed  ujjon  tlie  numl)er  of 
their  guests,  such  exhil)itions  of 
the  film  were  public  and  came 
within  the  prohibition  of  the 
statute. 

See  opinion  of  the  United 
States  Circuit  Court  of  Appeals. 

"  Weber  v.  Freed  (1915),  239 
U.  S.  32.^);  36  Sup.  Ct.  131.  See 
also  opinion  of  lower  court  in 
224  Fed.  355. 

"Tariff  Act  of  October  3, 
1013,  Chapter  16,  Section  1,  Sub- 
secti(jn  380  3S  Stat.  114;  (United 
States  Compile<l  Statutes  of  1916, 
Section  5201,  p.  0380.) 

"...  photographic  film  nega- 
tives imix)rted  in  any  form,  for 
use  in  any  way  in  connection 
with  moving  picture  exhil)its  or 
for  making  or  reproducing  pic- 
tures for  such  exhibits  exjiosinl 
but  not  devel()|)ed,  two  cents  per 
linear  or  rumiing  fiM)t;  if  exposed 


390 


THE    LAW    OF   MOTION   PICTURES 


Court  of  Appeals  in  Kalisthenic  Exhibition  Co.,  Inc.,  v. 
Emmons,  holds  that  the  censorship  provision  of  the  stat- 
ute may  permit  the  barring  of  the  entry  of  a  film  until 
the  Secretary  of  the  Treasury  subjects  it  to  his  censor- 
ship.^^ 

As  in  the  case  of  authorities  in  whom  are  vested  the 
right  to  issue  and  revoke  Ucenses  for  the  giving  of  motion 
picture  exhibitions,  the  action  of  Boards  of  Censorship 
will  not  be  interfered  with  by  the  courts,  unless  the 
element  of  bad  faith,  capriciousness  or  misinformation  is 
apparent.^" 


and  developed,  three  cents  per 
linear  or  running  foot;  photo- 
graphic film  positives,  imported 
in  any  form  for  use  in  any 
way  in  connection  with  moving- 
picture  exhibits,  including  herein 
all  moving,  motion,  motophotog- 
raphy  or  cinematography  film 
pictures,  prints,  positives  or  du- 
plicates of  every  kind  and  nature 
and  of  whatever  substance  made, 
one  cent  per  linear  or  running 
foot.  Provided,  hoireva-,  that  all 
photographic  films  imported  under 
this  section  shall  be  subject  to  such 
censorship  as  may  be  imposed  by 
the  Secretary  of  the  Treasririf." 

^'Kalisthenic  Kxhihition  Co. 
Inc.  V.  Emmons  (li)lf)),  22')  Fed. 
(C.  C:.  A.)  124.  The  following  is 
the  language  of  Putnam,  C.  J.: 
"Thf  lator  act  .  .  .  by  its  closing 
provision    apparently    bars    im- 


portations except  subject  to  cen- 
sorship and  as  no  censorship 
has  been  imposed  which  reaches 
this  case,  the  bar  therefore  con- 
tinues, so  far  as  we  perceive." 

60  In  re  Franklin  Film  Mfg.  Co. 
(1916),  253  Pa.  422;  98  Atl.  623. 
"Every  order  for  an  elimination 
made  by  the  Ijoard  of  censors, 
necessarily  comprehends  a  find- 
ing that  the  picture  in  question 
is  'sacrilegious,  obscene,  indecent 
or  immoral'  and,  as  such,  tends 
to  'debase  or  corrupt  morals' 
.  .  .  yet  it  (the  court  below)  did 
not  find  the  censors  were  guilty 
of  an  arbitrary  or  oppressive 
abuse  of  discretion,  and,  in  the 
absence  of  such  a  determination, 
the  order  coniplainetl  of  canncjt 
stand." 

"...  The  evident  intent  was 
to    grant    a    right    of    appeal    to 


SUNDAY    PKRFORMANCE 


:m 


Section  120. — Sunday  performance. 

Sunday  wils  not  a  dies  non  under  the  common  law,  and 
all  regulations  respecting  the  observance  of  Sunday  and 
the  prohibition  of  particular  lines  of  activity  are  purely 
of  statutory  creation. 

However,  Sunday  statutes  are  very  old. 

The  earliest  general  statute  on  the  subject  is  contained 
in  the  Act  of  1077  (29  Car.  2,  Chap.  7),  more  generally 
kno\^^l  as  the  "Lord's  Day  Act."  Under  this  statute  it 
wa.s  declared  "that  no  tradesman,  artificer,  workman, 
labourer  or  other  person  whatsoever  shall  do  or  exercise 
any  worldl}-  labour,  business  or  work  of  their  ordinary 
callings  upon  tlie  Lord's  Day  or  any  part  thereof,  works 
of  necessity  and  charity  only  excepted."  The  statute  im- 
posed a  fine  of  five  shillings  for  a  violation  thereof. 

For  many  years  thereafter  the  courts  were  occupied 
with  construing  the  meaning  of  "works  of  necessity."^' 
Under  a  later  statute®-  it  was  made  a  crime  to  open  a 
the  Common  PIea.s  so  that  that  Phillips  v.  Inez  (Eng.)  (1837), 
tribunal  could  correct  any  arbi- 
trary or  oppressive  orders  which 
i\w  Hoard  of  Censors  mipjht  make, 
and  nothing  more;  in  otiicr  words, 
that  the  court  might  reverse 
the  censors  when  the  latter  were 
guilty  of  an  abuse  of  discretion 


See  for  detailed  discussion  of 
subject,  Sections  107  to  110. 

*'  For  a  construction  of  what 
constitutes  "  U'o/An  of  Xtcissily" 
see  C  repps  v.  Burden  (Kng.) 
(1777),   Comp.    Pt.    2.    p.    ()4(): 


42  II.  R.  19;  Palmer  v.  Snow 
(Eng.)  (1900),  1  Q.  B.  72.=); 
BiUlen  v.  Ward  (Eng.)  (H)05), 
[Y.i  L.  T.  X.  S.  439;  Williams  v. 
Wright:  Walts  v.  Van  Ness  (1841), 
1  Hill  (N.  Y.),  76;  Corlesy  v. 
Territory  (1892),  6  N.  M.  682;  30 
Par.  947;  Flagstaff  Silrer  Co. 
V.  Cidlitis  (1881),  104  U.  S.  176. 

*'  Sunday  Observance  Act  of 
1780  (21  Geo.  III,c.  49)s.  1. 

Se<;  in  this  connection:  Wil- 
liams V.  Wright  (i:ng.)  (1897), 
41  S.  .1.  671.  13  T.  L.  H.  .551. 


392  THE    LAW   OF   MOTION    PICTURES 

room  or  house  for  public  entertainment,  amusement  or 
debate  on  Sunday  and  to  charge  an  adniission  fee  therefor. 

The  charge  of  an  admission  fee  has  often  been  the 
determining  factor  in  estabHshing  whether  or  not  there 
has  been  a  violation  of  the  statute,  but  the  decisions  on 
that  point  are  not  harmonious.^^  We  should  have  no 
hesitancy  in  saying  that  since  the  intent  of  the  legislature, 
as  a  rule,  is  to  prohibit  a  performance  from  which  a  profit 
may  be  derived,  the  mere  fact  that  admission  fees  are 
charged  is  not  very  material.  There  frequently  are  other 
and  perhaps  more  subtle  and  indirect  methods  of  deriving 
gain  and  profit,  and  Herbert  v.  Shanley  ®^  would  now  seem 
to  be  controlling  on  that  point. 

The  New  York  Statutes  are  typical  of  many  Sunday 
statutes  throughout  the  country.  Indeed,  New  York  was 
one  of  the  first  states  to  adopt  statutes  which  prohibited 
theatrical  performances  on  Sunday,  but  it  has  not  yet 
passed  any  statute  expressly  prohibiting  the  exhibition 
of  motion  pictures  on  Sunday.  The  result  is  a  generally 
chaotic  state  of  the  law  with  respect  to  Sunday  per- 
formances. The  history  of  the  construction  of  these 
statutes  is  instructive. 

Chapter  42  of  the  Laws  of  1788  of  the  state  of  New 

'^^Ex    parte    Jacohson    (190i)),  Tex.  Crim.  229;   116  S.  W.  51; 

55Tex.Crim.237;115S.W.  119.S;  Fichtenberg    v.    Atlanta     (1906), 

WeistblaU    v.     Binghnm     (190S),  126  (la.  62;  54  S.  K.  933;  Com. 

58  Misc.  (N.  Y.)  .32S;  109  N.  Y.  v.  Weidner  (18S7),  4  Pa.  Co.  Ct. 

Supp.     545;     Kcntiotiinpoulos     v.  437. 

/itn^/iam  (1907),  109  N.  Y.Supp.  »*  Herbert    v.    Sfuinky    (1917), 

728;    La    Crarulall    v.    Lcdbrltrr  242  U.  S.  591;  37  Sup.  Ct.  232; 

n90S),  1.59  Fod.  (('.  C.  A.)  702;  Church    v.    IliUi'nrd    (1917),    212 

MiickeufmH   v.    ,SlnU:    (1909),   .55  U.  S.  591;  37  Sup.  Ct.  232. 


RUNDAY    PF.nrORMAN'CE  31)3 

York  ])roliil)iU'(l  servile  work,  traveling  and  shooting, 
fishing,  s])()rting,  j)laying,  horse  racing,  hunting  or  fre- 
(luenting  ti{)])ling  houses  or  any  unlawful  exercise  or  pas- 
times on  Sunday.  This  Chapter  was  carried  into  the 
Revised  T.aws  of  1S13  without  change  and  into  the  Re- 
\is('(l  Statutes  of  1S3()  witli  the  addition  of  "gaming." 
It  was  later  incorporated  into  Section  205  of  the  Penal 
Code. 

In  1UU8  the  statute  came  up  for  construction  in  a  case 
where  the  owner  of  a  theatre  had  been  convicted  for 
giving  a  motion-picture  exhibition  on  Sunday.  It  was 
licld  that  the  phrase  "or  other  public  f^ports,  exercise  or 
show:-;''  in  that  section  of  the  Penal  Code  was  to  be  con- 
strued in  tiie  light  of  the  ejusdem  generis  rule  and  that  the 
words  above  (juoted  referred  merely  to  outdoor  amusement 
or  such  a.s  would  in  their  nature  desecrate  or  profane  the 
Sabbath;  that  they  had  no  application  whatever  to  the 
exhibition  of  a  motion-picture.^''  This  interpretation  of 
the  statute  was  followed  in  later  cases. '^ 

'^^  People     V.     Ilemhb     (190S),  ^up]).  ISl;  Eden  Mus^e  v.  B ing- 

127  A.  I).  (X.  Y.)  r)6.  Iinm    (lUOS),  125  A.  D.  (X.  Y.) 

See  also:  Stale  v.  Penni/  (1!)10),  7.S();  1 10  X.  Y.  Supp.  210;  Slate  v. 

42    Mont.    118;    111     Pac.    727;  Chnmberlain    (1»)10),    112    Minn. 

People  ex   rcl.    Valensi   v.   Fli/nn  ')2;  127  X.  W.  444;  Rex  v.  Char- 

(1!»0S),    lOS    X.    Y.    Supp.    20S;  n»i    (Can.)   (IWO),  15  Can.  Cr. 

Held    V.    Wilson    (KiiR.)    (IS«»5),  (as.    (Quebec),    241;    Iloiwk    v. 

\  il  n.  :iir);  People  ex  rel  Valensi  Ingles    (1014),    12(>    Minn.    2:)7: 

V.  Ijfiicli  (1U08),  108  X.  Y.  Supj).  148  X.  W.   100;  State  v.  Monis 

20!);  Keith  &  Proctor  v.  Pingham  (191«)),    155    Par.    (Idaho),    29G; 

(lUOS),   125  A.   1).   (X.   Y.)   701;  People    v.     Brown     (1!)12),     \\M 

110  X.   Y.  Supp.   210;    Edwards  X.  W.  (Mich.),  .'):r>. 

V.    McClellan   (1000),    118  X.  Y.  '^People    v.    Finn    (HKXS),    57 


394 


THE    LAW   OF   MOTION    PICTURES 


In  1916,  the  statute  again  came  before  the  court  for 
construction.  It  was  held  in  effect  that  a  motion-picture 
was  one  of  the  "other  public  sports,  exercises  or  shoivs"  and 
should  be  prohibited. ^^  The  highest  court,  not  having 
had  the  question  before  it  as  yet,  the  conflicting  decisions 
have  left  the  law  in  New  York  in  a  very  unsettled  state."^ 

In  construing  Sunday  statutes,  the  courts  have  taken 
into  consideration  the  fact  whether  at  the  time  the  act 
was  passed  motion  pictures  had  become  well  known  and 


Misc.  (N.  Y.)  659;  Fox  Amme- 
ment  Co.  v.  McClellan  (1909), 
62  Misc.  (N.  Y.)  100;  114  N.  Y. 
Supp.  594;  110  N.  Y.  Supp.  22; 
Klinger  v.  Ryan  (1915),  91  Misc. 
(N.  Y.)  71;  153  N.  Y.  Supp.  71; 
153  N.  Y.  Supp.  937;  People 
ex  rel.  Klinger  v.  Rand  (1915), 
91  Misc.  (N.  Y.)  276;  154  N.  Y. 
Supp.  293. 

"  People  ex  rel.  Bender  v.  Joyce 
(1916),  174  A.  D.  (x\.  Y.)  574; 
161  N.  Y.  Supp.  771.  Holds  that 
Sec.  2145  of  the  Penal  Law  ap- 
plies to  motion-picture  theatres, 
and  relator,  convicted  of  conduct- 
InR  such  a  theatre  on  Sunday, 
was  remanded.  This  decision 
has  aroused  con^idorahle  (hscus- 
sion,  as  it  is  directly  opposed  to 
People  V.  Hemlcb  (190S) ,  127  A .  1 ). 
(N.  Y.)  3.56,  wherein  .JudRC  (!ay- 
nor  decided  tliat  tlic  exhibition  of 
motion  pictures  was  nof,  a  viola- 
tion of  the  statute. 


'^^  At  the  present  writing  the 
Appellate  Divisions  of  the  State 
of  New  York  are  diametrically 
opposed  to  each  other  in  constru- 
ing the  foregoing  section.  We 
even  doubt  whether  a  decision 
of  the  Court  of  Appeals  would 
clear  the  situation,  for  any 
section  upon  which  the  principle 
must  rest,  it  must  be  reineml)ered, 
was  passed  before  the  advent  of 
motion-pictures.  Direct  and  plain 
legislation  on  the  subject  is  the 
real  necessity,  and  tlie  reason  that 
there  is  none  is  that  the  people 
want  Sunday  motion-pictures  and 
the  religious  organizations  do  not 
want  tlicin  to  have  it.  It  is  to 
be  deplored  that  so  inijiortant 
a  feature  of  the  motion-picture 
business  and  of  the  life  of  the 
people  should  be  sul),ie<'t  to  the 
wliiin  and  capric-e  of  individual 
judges  rather  tlian  to  special  legis- 
lative enartnient. 


S;r\I)\V    J'KRFORNfANCE 


3o:. 


for  that   roason   in   tlic  minds  of  the  logislators  ai    that 
time.^' 

The  legislature  alone  is  tlie  sole  judge  of  observances  or 
profanities  of  the  Sabbath  and  a  Mayor  or  other  municipal 
officer  unless  expressly  authorized  so  to  do,  lias  no  inherent 
authority  to  regulate  the  same.'" 


«•  Peoplev.  f'lnn  (190.S),r)7  Misc. 
(N.  Y.),  659;  110  N.  Y.  Supp.  22. 

"This  act  \va.s  framed  beforo 
the  idea  of  moving  pictures  was 
ooncpivod  by  the  mind  of  man 
and  must  be  interpreted  with 
relation  to  tlie  then  intent  of  the 
Legislators." 

/{ra.W.Hull{\9\0),  18  Idaho, 
47.'):  110  Pac.  2r,C).  Tlie  Supreme 
Court  of  Idaho  speaking  of  a 
scenic  railway  said: 

"The  prohibition  of  public 
amusemenfs  on  Sunday  must 
therefore  rest  on  the  theory  that 
it  is  neces.sary  either  for  the  pro- 
tection of  the  public  morals,  the 
public  health,  or  the  public 
peace  and  safety.  (Citing  ca.ses.) 
This  amu.sement  is  not  per  se, 
unlawful  or  criminal,  nor  is  it 
inuMora!  t»r  dangerous  or  detri- 
mentid  to  the  public  health.  It 
is  apparently  a  wholesome,  in- 
nocent outdoor  amusement.  In 
order  to  prohibit  such  an  amuse- 
ment we  ought  to  find  the 
prohibition  within  the  .statute, 
either    in    posit  iv(>    terms   or    by 


clear  implication.  No  .s?/r/i  means 
vf  amiu<cmeiil  existed  at  the  time 
of  the  passage  of  thix  act,  and  if 
this  is  to  be  prohibited  under  the 
statute,  it  must  be  l)y  rea.son  of 
it  being  '  such  a  place  of  amuse- 
ment '  as  some  one  of  tho.se  spe- 
cifically enumerate<i.  We  tlo  not 
feel  that  we  would  be  justifiwi  in 
extending  the  statute  to  cover 
this  means  of  amu.sement,  and 
thereby  make  its  maintenance 
and  ojieration  a  crime." 

'» .\Vi/t'/«/<;r/r  V.  Duryea  (1877), 
(V.)  X.  Y.  .').')7.  See  also:  People  v. 
Dunfonl  (1912),  207  X.  Y.  17; 
100  X.  E.  4;J3. 

People  ex  rel.  Kieley  v.  Lent 
(IfUr.),  lOfi  A.  D.  (X.  Y.)  5oO; 
l.V_>  N.  Y.  Supp.  IS;  afT'd  21.') 
X.  Y.  r.2(i;  109  X.  K.  1088.  The 
legislature  alone  has  power  to 
enforce  ordinances  by  penalties, 
forfeitures  and  imprisonment,  and 
unless  it  htis  expressly  delegated 
this  |M)wer  to  a  municipality,  tlie 
latter  may  not  enforce  a  Sunday 
dosing  ordinance  as  to  motion 
picture  houses. 


396 


THE    LAW   OF   MOTION   PICTURES 


In  many  of  the  states  exhibitions  of  motion  pictures 
have  been  held  exempt  from  the  operation  of  statutexS 
forbidding  the  keeping  open  of  a  theatre  on  Sunday,"^  the 
operation  of  "other  places  of  amusement"  ^-  and  of 
"amusements  disturbing  the  peace."  "'^ 


Cily  of  Neiv  York  v.  Alhambra 
Theatre  (1910),  136  A.  D.  (N.  Y.) 
509;  121  N.  Y.  Supp.  3;  aff'd 
202  N.  Y.  528;  95  N.  E.  1125. 
The  municipality  had  by  express 
enactment  (Greater  N.  Y.  Char- 
ter) been  given  the  power  to  pass 
ordinances  regulating  the  oli- 
servance  of  Sunday  and  the  de- 
fendant had  been  held  liable  in  a 
penalty  for  giving  a  theatrical 
performance  on  Sunday.  See 
also:  People  v.  O'Gorman  (1908), 
124  A.  D.  (N.  Y.)  222;  108  N.  Y. 
Supp.  737;  New  York  v.  Williams 
(1905),  48  Misc.  (X.  Y.)  77;  90 
N.  Y.  Supp.  237;  Matter  of  New 
York  (1909),  131  A.  D.  (N.  Y.) 
7G7;  116  N.  Y.  Supp.  353;  St. 
Joseph  V.  Elliott  (1891),  47  Mo. 
A  pp.  418;  Ex  parte  Ferguson 
(1914),  80  Wash.  102;  141  Pac. 
322. 

^^  Stale  V.  Penny  (1910),  111 
Pac.  (Mont.)  727.  Held  that  a 
statute  making  it  a  misdemeanor 
to  keep  open  a  theatre  on  Sun- 
day was  not  violated  l)y  the 
giving  of  a  motir)n  pictun^  exhibi- 
tion. 


"  City  of  Clinton  v.  Wilson 
(1913),  257  111.  580;  101  N.  E. 
192.  The  statute  prohibited 
"any  biUiard  room,  ball  or  pin 
alley,  baseball  grounds  or  other 
places  of  amusement  to  operate 
on  Sunday.  Held  that  it  did  not 
apply  to  motion  picture  per- 
formances. 

''^Stevens  v.  Morenotis  (1912), 
169  111.  App.  282.  Under  a 
statute  prohibiting  amusements 
disturbing  the  peace  and  good 
order  of  society  it  was  held  that 
the  proprietor  of  a  th6atre  could 
not  be  restrained  from  giving 
Sunday  performances  when  such 
performances  were  proper  and 
moral. 

See  also:  Eden  v.  People  (1896), 
161  111.  296;  43  N.  E.  1108;  Contra 
with  respect  to  a  motion  picture 
exhibition:  United  Vamleville  Co. 
v.  7.dlcr  (1908),  .^)S  Misc.  (N.  Y.) 
16;  108  N.  Y.  Supp.  789;  Ilnndin 
V.  Bender  (1915),  92  Misc.  (N.  Y.) 
16;  155  N.  Y.  Supp.  963;  Gale 
V.  Bingham  (1907),  110  N.  Y. 
Supp.  12. 

See  also:  A.  II.  Woods  Prod.  Co. 


SUNDAY    PERFORMANCE 


307 


On  the  other  liaiid,  they  have  been  held  Uj  come  u  iiliin 
the  i)rovisions  of  statutes  j)rohil;iting  "theatrical  per- 
formances"^' and  the  keeping  open  of  "any  j)lace  of 
public  amusement."  '"' 


V.  Cfiicngu  R.  li.  (1900),  147  III. 
A  pp.  oGS.  .'V  tliciitricjil  i)erforni- 
anco  oil  Sunday  was  hold  not  to 
violate  a  statute  prohibiting  "any 
noise,  rout  or  amusement  on 
the  first  day  of  the  week  dis- 
turbing the  peace  of  any  private 
family." 

^*  Ex  parte  LingcnfcUcr  (1911), 
64  Tex.  Crim.  30;  142  S.  W.  555. 
"licing  of  the  opinion  that  a 
moving  picture  show  of  the  char- 
acter and  kind  presented  in  this 
state,  comes  within  the  definition 
of  amusements  of  like  character, 
kind  and  species  as  a  theatre, 
and  wliile  not  a  tlieatre,  yet  it  is 
of  the  same  genus,  relator  is 
remanded.  Our  statutes  refer 
to  a  "horse"  and  this  term  has 
been  held  to  embrace  a  mare,  a 
mule,  a  jack,  a  jenny,  as  they  are 
all  of  the  same  s|x;cies,  and 
many  illustrations  might  be  cited 
as  holding  that  all  things  of  the 
same  genus  are  embraced,  even 


when  not  followf.'*!  by  general 
words,  but  we  deem  it  usele.s.s." 

Ca-ses  referred  to  by  the  court 
include:  Ez  parte  lioqitemore 
(1910),  60  Te.v.  Crim.  282;  131 
S.  W.  1101;  Ex  parte  Mnrkcnfuss 
(190S),  52  Tex.  Crim.  407;  107 
S.  W.  1131;  CVou;  V.  Stale  (1851),  6 
Tex.  334;  In  re  Hull  (1910),  18 
Idaho,  475;  110  Pac.  2."j6;  State 
V.  I'ratltcr  (1900),  79  Kansas,  513; 
100  Pac.  57;  Ex  Parte  Xect  (1910), 
157  Mo.  527;  57  S.  W.  1025.  To 
the  same  effect:  In  re  Bossner 
(1010),  IS  Idaho,  519;  110  Pac. 
502. 

Rosenberg  v.  Arroivsmith  (1914), 
89  Atl.  (X.  J.)  524.  The  statute 
in  (luestion  prohibited  "worldly 
employment  or  business,  inter- 
ludes and  plays,  fiddling,  or 
other  music  for  the  sake  of  mer- 
riment on  Sunday."  Moving  pic- 
ture exhibitions  were  held  to  be 
includcHl  within  that  statute. 

See  in   this  connection:  Foiiii- 


■"' Oliver  V.  State  (1011),  144 
S.  W.  (Tex.)  604.  Held  that  a 
motion  picture  exhibition  was 
included  under  a  statute  pro- 
hibiting   the    keeping    ofKjn    of 


"any  place  of  public  amuse- 
ment" on  Sunday.  Sec  also: 
Ex  parte  Ziiccaro  (1913),  162 
S.  W.  (Tex.)  844. 


398 


THE    LAW   OF   MOTION    PICTURES 


To  manage  a  theatre  on  Sunday  has  been  held  to  be 
"labor"  within  Sunday  statutes."*^ 


tain  Sq.  Theatre  v.  Eva7is  (1896), 
4  Ohio  Dec.  151;  Matter  of  Ham- 
merstein  (1907),  57  Misc.  (N.  Y.) 
52;  108  N.  Y.  Supp.  197;  People  v. 
Haijm  (1860),  20  How.  Pr.  (N.  Y.) 
76;  State  v.  Herald  (1907),  47 
Wash.  538;  92  Pac.  376;  In  re 
Donellan  (1908),  49  Wash.  460; 
95  Pac.  1085;  People  v.  Hammer- 
stein  (1913),  155  A.  D.  (N.  Y.) 
204;  139  N.  Y.  Supp.  1075; 
Kreider  v.  State  (1912),  103  Ark. 
438;  147  S.  W.  449;  Reg.  v.  Barms 
(Can.),  45  U.  C.  Q.  B.  276;  N.  Y. 
V.  Eden  Musee  (1886),  102  N.  Y. 
593;  8  N.  E.  40;  Stewart  v. 
Thaijer  (1897),  168  Mass.  519;  47 
N.  E.  420. 

^«  City  of  Topeka  v.  Crawford 
(1908),  78  Kan.  583;  96  Pac.  862. 
"If  to  keep  open  a  store  and  re- 
ceive and  sell  wares  therein  is 
the  common  labor  of  a  merchant, 
it  is  fair  to  say  that  to  keep  open, 
manage  and  suporiiitoiid  a  theatre 
and  sell  tickets  tlicrein  is  tlu; 
labor  of  such  manager."  Held 
that  managing  a  theatre  on  Sun- 
day was  labor  and  was  a  viola- 
tion of  the  statute. 

Qwirlc!^  V.  State  (1891),  55 
Ark.  10;  17  S.  W.  269.  To 
superitit<'nd  and  manage  the  giv- 
ing of  a  theatrical   performance 


on  Sunday,  and  to  sell  tickets 
therefor  is  "labor"  within  the 
meaning  of  a  statute  that  pro- 
hibits all  labor  on  Sunday. 

See  also:  City  of  Topeka  v. 
Craivford  (1908),  78  Kan.  583; 
96  Pac.  862;  Wirth  v.  Calhoun 
(1902),  64  Nebr.  316;  89  N.  W. 
785;  Comm.  v.  Alexander  (1904), 
185  Mass.  551;  70  N.  E.  1017; 
Rex  V.  Ouimet  (Can.)  (1908), 
14  Can.  Cr.  Cas.  (Quebec)  136; 
Moore  v.  Owen  (1908),  58  Misc. 
(N.  Y.)  332;  109  N.  Y.  Supp.  585; 
Re  Bossncr  (1910),  18  Idaho,  519; 
110  Pac.  502;  Ex  parte  Lingen- 
felter  (1911),  64  Tex.  Crim.  30; 
142  S.  W.  555;  Ex  parte  Zuccaro 
(1913),  72  Tex.  Crim.  Rep.  214; 
162  S.  W.  844;  St.  Joseph  v. 
Elliott  (1891),  47  Mo.  App.  418; 
State  V.  Ryan  (1908),  80  Conn. 
582;  69  Atl.  536;  Fox  v.  McClellan 
(1909),  62  Misc.  (N.  Y.)  100; 
114  N.  Y.  Supix  594;  Terry  v. 
Brighton.  Aquarium  (I'-ng.)  (1875), 
L.  H.  10  (.}.  B.  306;  City  of  Clin- 
ton V.  Wilson  (1913),  257  111. 
580;  101  N.  E.  192;  McLeod  v. 
State  (1915),  180  S.  W.  (Tex.) 
117;  Spooncr  v.  State  (1916), 
182  S.  W.  (Tex.)  1121;  Gould  v. 
State  (1911),  134  S.  W.  (Tex.) 
695;  Letnpke  v.  State  (1915),  171 


SUNDAY    I'ERFOllMANr?: 


31)0 


A  statute  wliich  jiioliibit.s  tlie  operation  of  motion 
picture  theatres  on  Sunday  is  constitutional.^  It  is  in 
its  essence  a  police  regulation  "•*  and  a  defendant  may  he 
|)rose('uted  simultaneously  under  it  for  both  the  civil  and 
.criminal  penalties.''' 

Equity  will  not  restrain  a  defendant  from  giving  such  per- 
formances, but  will  relegate  thestate  toitscriminal  remedy.**" 


S.  W.  (Tex.)  217;  Peui)le  v.  Dixun 
(11)15),  l.>4  k.  W.  (Mich.)  1. 

estate  V.  Barnes  (1911),  22 
N.  D.  18;  132  X.  W.  215.  A 
statute  i)rohil)iting  the  operation 
of  a  theatre,  show,  inoviiip;  pic- 
ture e.\liii)itioii  or  theatrical  per- 
formance oil  Sunckij'  was  held 
constitutional. 

See  cjuses  cited  in  opinion  of 
the  above  ca.se  for  decisions  in 
the  difTercnt  states  of  the  union 
to  the  same  effect. 

^^  Majestic  Theatre  v.  Citij  of 
Cedar  Rapids  (1911),  153  la.  219; 
133  X.  W.  117.  There  was  in- 
troduced in  the  city  council  for 
enactment  a  |)roposcd  ordinance 
prohibiting;  theatrical  exhibitions 
on  Sunday.  IMaintilTs,  proprie- 
tors of  a  theatre  in  the  city 
sought  to  restrain  the  pas.sage 
of  such  ordinance  uix)n  the 
ground  that  its  pa.s.sajie  and  en- 
forcement woulil  be  in  violation 
of  the  constitution  of  tiie  state 
forbidding  discrimination  l)e- 
tween    classes    of    |x;rsons,    and 


further  in  violation  of  the  four- 
teenth amendment  of  the  Federal 
constituti(jn.  The  demurrer  to 
the  bill  wius  sustaineti  upon  the 
ground  that  the  ordinance  was 
in  the  nature  of  a  i^olice  regula- 
tion, and  if  void  for  unrea.sonable- 
ness  or  not  within  the  |)ower  dele- 
gated to  the  city,  the  courts 
would  not  enforce  it. 

"^'(7//  (*/  .V.  }'.  V.  Williams 
(1905),  48  Misc.  (X.  Y.)  77;  96 
X.  Y.  Supp.  237. 

^  Twiggar  v.  Rosenberg  (1916), 
98  Mi.sc.  (X.  Y.)  8G;  IG^i  X.  Y. 
Supp.  771.  The  court  will  not 
restrain  the  defendant  from  con- 
ducting a  motion-picture  show  on 
Sunihiy. 

"  It  ha.s  long  been  held  that 
courts  may  not  resort  to  injunc- 
tion to  enforce  ti»e  criminal 
law." 

Lyric  Thcalrc  v.  State  (1911), 
130  S.  W.  (.Vrk.)  174.  Suit  was 
instituted  in  the  name  of  the 
state  of  Arkansas  to  enjoin  de- 
fendant from  giving  public  per- 


400 


THE    LAW   OF   MOTION    PICTURES 


Nor  will  it  restrain  the  police  officials  from  carrying  out 
the  provisions  of  the  statute.^ ^ 

To  sustain  a  conviction  under  the  statute  the  defendant 
must  be  in  some  way  responsible  for  the  performance.  If 
as  proprietor,  it  must  have  been  given  with  his  knowledge 
and  consent,^^  and  a  manager  is  also  responsible.^^ 

125  A.  D.  (N.  Y.)  792;  HON.  Y. 
Supp.  219;  Olympic  A.  C.  v.  Bing- 
ham (1908),  125  A.  D.  (N.Y.)  793; 
110  N.  Y.  Supp.  216. 

82  See  People  v.  Kingston  (1912), 
139  N.  Y.  Supp.  649,  for  a  very 
able  discussion  of  Sunday  per- 
formances of  motion  pictures 
and  as  to  the  sufficiency  of  the 
evidence  to  hold  the  defendant 
liable. 

Reid  V.  Wilson  (Kufi.),  1 
Q.  B.  D.  315.  An  attempt  was 
made  to  convict  the  persons  re- 
sponsible for  a  series  of  educa- 
tional lectures  given  on  Sunday 
evenings,  under  the  provisions 
of  21  Geo.  Ill,  ch.  49,  but  it  was 
unsuccessful. 

»^  Gould  V.  State  (1912),  146 
S.  W.  (Tex.)  172.  While,  in  a 
criminal  prosecution  for  keeping 
open  a  theatre  on  Sunday,  the 
defendant  showed  that  he  was 
not  the  ])roprietor,  he  was  held 
nevertheless  liable  as  it  wjis 
shown  that  lir  IkhI  been  licid  out 
as    the    maiiiigcr. 


formances  of  vaudeville  and  mo- 
tion pictures  in  its  theatre.  These 
performances  were  given  gratis, 
and  were  wholly  proper  and  moral. 

Held  that  chancery  would  not 
enjoin  the  doing  of  an  act  which 
was  purely  criminal. 

Held  further  that  a  theatre 
was  not  per  se  a  nuisance,  al- 
though it  might  attract  the  law- 
less and  the  noisy  so  as  to  be- 
come a  public  nuisance. 

See  also:  Eden  Micsee  v.  Bing- 
fmm  (1908),  125  A.  D.  (N.  Y.) 
780;  110  N.  Y.  Supp.  210;  Shep- 
herd V.  Bingham  (1908),  125 
A.  D.  (N.  Y.)  784;  110  N.  Y. 
Supp.  217. 

«'  Eden  Musce  v.  Bingham 
(1908),  125  A.  D.  (X.  Y.)  780; 
110  N.  Y.  Supp.  210;  Shepherd  v. 
Bingham  (1908),  125  A.  D.  (N. 
Y.)  784;  110  N.  Y.  Supp.  217; 
SncHskind  v.  Bingham  (1908),  125 
A.  D.  (N.  Y.)  787;  110  N.  Y. 
Supp.  213;  Keith  (fe  Proctor  v. 
Bingham  (1908),  125  A.  D.  (N.  Y.) 
791;  110  N.  Y.  Supp.  219; 
Schimkcvilz    v.    Bingham    (1908), 


SUNDAY    I'KUFOHMANCE  401 

\\liilc  tlie  fuel  that  tlie  proceeds  of  the  ])erf(jniianc(' 
arc  devoted  to  .some  worthy  charitaljle  eiiterpri.se  is  in 
general  no  defense  "'  it  would  amount  to  a  defense  in  such 
states  wliich  except  "works  of  charity  or  necessity."  ** 

»<  Koclhlc  V.  \V(jo(h,  159  N.  Y.  charity  did  not  take  it  (nit  of  the 

Supp.   704.     Held  that   the   fact  operation  of  the  .statute. 
that  the  proceeds  of  the  perf(jrni-  »'  For   detailed    discussion    see 

ance    were    given    to    a  worthy  Section  82. 


CHAPTER  X 

UNFAIR   COMPETITION 

Titles — Marks  and  Devices 

Sec.  121.  Using  same  or  similar  titles. 

122.  Use  of  title  after  copyright  in  work  expires. 

123.  Infringement  of  titles — Titles  held  to  infringe. 

124.  Infringement  of  titles — Titles  held  not  to  infringe. 

125.  Acquiescence  and  abandonment. 

126.  Relief. 

127.  Marks  and  devices. 

128.  Transferability. 

129.  Parties. 

130.  Actions  at  law. 

131.  Trade-mark  in  title  of  cartoon. 

Section  121. — Using  same  or  similar  titles. 

In  dealing  with  the  title  of  a  work,  we  shall  disregard 
entirely  the  body  of  it.  We  shall  assume  that  in  all  cases 
where  the  question  of  title  arises,  there  is  no  resemblance 
in  the  body  of  the  work  as  between  the  two  plays  or  mo- 
tion pictures.  The  remedy  in  all  cases  arising  out  of 
infringement  of  the  text,  plot,  situation  or  characteriza- 
tion of  the  work  is  under  the  Copyright  Act,  or  under 
the  common  law  in  the  case  of  an  uncopyrighted  and 
unimbhshed  work. 

The  title  of  a  play  or  motion  picture  is  the  most  valuable 
part  of  this  species  of  literary  property.  It  is  the  medium 
402 


LSINCJ    .SA.ML    Uli   .SIMILAR    TITLES 


403 


througli  wliich  the  production  bc'C(Jines  ideiitiliud  with 
the  i)ul)hc,  and  hy  wliicii  it  i.s  advertised,  lauded  and 
made  valuable  to  the  owner.  It  is  also  a  nnost  prolific 
source  of  infringement,  and  withal  the  least  protected 
part  of  the  work. 

Copyright  does  not  extend  to  the  title.  An  author  or 
dramatist  ac(iuires  the  benefit  of  the  copyright  law  in 
every  jiart  of  his  work,  except  where  he  most  needs  it  — 
in  the  title  itself.  To  that,  copjTight  will  not  extend,  no 
matter  how  original  or  admirable  the  author's  conception.' 


'  Glaaer  v.  St.  Elmo  (1909),  175 
Fed.  (C.  C.)  276.  "The  com- 
plniniints  cliiiin,  liowcver,  that, 
a.s  they  have  a  legal  copj-riglit  of 
a  j)lay  named  'St.  Ehno,'  the 
defeiidaiits  have  no  right  to 
apply  t!i(!  name  'St.  Elmo' 
to  the  play  prodiuod  b}'  them. 
There  is  some  d(juht,  under  tlie 
authorities,  whetlier  a  peivon 
who  has  a  vahd  eopyright  in  a 
honk  or  j)lay  lias  an  e.xclusive 
right  to  tlie  title.  Some  ca-se.s 
hold  tliat  the  title  of  a  book  or 
l)lay  is  a  part  of  tiie  thing  copy- 
righted and  that  no  other  person 
can  adopt  such  title.  Wcldon  v. 
Dicks  (Eng.)  (187S),  E.  R.  10 
Ch.  Div.  247;  Estcs  v.  William.-^ 
(1884),  21  Fed.  (('.  V.)  1S9. 
Other  authorities  hold  tliat  a 
copyright  only  extends  to  a  lit- 
eniry  production  and  that  a  mere 
title   of    a   book   is   not   a   sub- 


ject of  copyright.  Harper  v. 
limwm  (189.3),  67  Fed.  (C.  C.) 
904;  Corhdl  v.  Purdy  (1897),  80 
Fed.  (C.  C.)  901;  Black  v.  Ehrich 
(1S91),  44  Fed.  (C.  C.)  793; 
Dicky.  Yaks  (Eng.)  (1.S81),  L.  R. 
18  Ch.  Div.  76;  Osgood  v.  Allen 
(1S72),  (('.  C.)  Fed.  Cas.  No. 
10003;  C'opinger's  Liuv  of  Copj'- 
riglit  (4th  Ed.),  p.  6-1;  9  Cyc.  p. 
92S  and  ca.ses  cited,  and  see 
Jollic  v.  Jnques  (1850),  (C,  C.) 
Fed.  Cas.  No.  7,437." 

"I  think  that  the  authorities, 
particularly  the  American  ca-ses, 
preponderate  that  the  copjTight 
of  a  lx)ok  docs  not  prevent  other 
l)ersons  from  taking  the  same 
title  for  another  work,  even  in  tiie 
ca.sc  of  an  entirely  unexpireil 
copyright." 

Corbdt  V.  Purdij  (1897),  80 
Fed.  (C.  C.)  901.  Lacombe,  C.  J. : 
"The  right  secured  by  the  copy- 


404 


THE    LAW    OF    MOTION    PICTURES 


But  the  title  may  be  protected  by  a  court  of  equity 
under  the  general  equity  powers  oi  the  court,  on  the  theory 
of  unfair  competition.-    It  can  only  be  protected,  however, 


right  act  is  the  property  in  the 
literary  composition  and  not  in 
the  name  or  title  given  to  it. 
In  no  case,  so  far  as  this  court  is 
advised  has  protection  been  af- 
forded by  injunction  under  the 
copyright  laws  to  the  title  alone, 
separate  from  the  book  or  dra- 
matic composition  which  it  is 
used  to  designate." 

Harper  v.  Ranoiis  (1895),  67 
Fed.  (C.  C.)  904.  "The  applica- 
tion, however,  for  an  injunction 
against  the  mere  use  of  the  name 
'Trilby'  as  the  title  of  any 
dramatic  composition  which  does 
not  present  such  scenes,  incidents, 
plot,  or  dialogue,  or  simulated 
or  colorable  imitation  or  adapta- 
tion thereof,  is  denied.  It  is  the 
name  in  connection  with  the 
novel,  not  the  name  alone,  which 
the  copyright  law  protects." 

Dick  v.  Yates  (ICng.)  (ISSl), 
18  Ch.  D.  76;  50  L.  J.  Ch.  809; 
44  L.  T.  660;  Waller  v.  Emnioll 
(Kng.)  (1885),  54  L.  J.  Ch.  1059; 
liorthwick  v.  Evening  Post  (Kng.) 
(1888),  37  (\  D.  160;  Crotch  v. 
Arnold  (Eng.)  (1909),  54  S.  J. 
49. 

Sec    al.so:    Atlas    MJy.    Co.    v. 


Street  &  Smith  (1913),  204  Fed. 
(C.  C.  A.)  398  at  p.  403,  which 
contains  an  exhaustive  summary 
of  the  authorities  on  this  point. 

^Robertson  v.  Berry  (1878\ 
50  Md.  591.  "A  pvhlisher  or 
author  has  either  in  the  title 
of  his  work  or  in  the  application 
of  his  name  to  the  work  or  in  the 
particular  marks  which  desig- 
nate it,  a  species  of  property 
similar  to  that  which  a  trader 
has  in  his  trade-mark,  and  may 
like  a  trader  claim  the  protec- 
tion of  a  Court  of  Equity  against 
such  a  use  or  imitation  of  the 
name,  marks  or  designations,  as 
is  likely  in  the  opinion  of  the 
Court  to  be  a  cause  of  damage 
to  him  in  respect  of  that  prop- 
erty." 

Frohman  v.  Miller  (1894),  8 
Misc.  (N.  Y.)  379;  29  N.  Y.  Supp. 
1109.  "While  there  is  no  doubt 
as  to  the  power  of  the  court  to 
enjoin  tlie  use  of  a  title  calculated 
to  deceive  the  public  into  the 
belief  that  the  defendants  were 
performing  tli(>  iilnintilT's  ])lay 
etc.  etc." 

"...  Tii(M"('f()re,  whether  copy- 
righted    or     not,     the     author's 


ITRINO    SAMK    OU    SIMILAR     TITLES 


40.1 


in  oonjiinctif)!!  with  tho  work  witli  wliicli  it  has  hocome 
associated. 

The  case  of  Munro  v.  Touseij,^  has  strongly  emphasized 
the  i)roposition  tliat  "a  pubUcation  is  the  su))jcct  of  prop- 
erty and  there  is  no  reason  why,  Hke  every  other  kind  of 
property,  it  should  not  be  the  subject  of  the  law's  protec- 
tion. To  put  out  a  colorable  imitation  of  it,  by  which 
the  public  may  be  easily  misled  into  supposing  that  it 
iii  the  literary  article  they  had  in  mind  to  obtain  and  read, 
is  an  act  of  deception,  which  injures  the  publisher." 

In  1900,  the  Appellate  Division  of  New  York  in  Out- 
cault  V.  Lamar,*  held  that  the  plaintiff,  who  had  invented 


rif^lit  to  the  title  of  his  attraction 
is  to  be  protected  from  unlawful 
invasion." 

See  also:  liroadliurd  v.  Nichol 
(Australian)  (1003),  X.  S.  W. 
.3  S.  1^  117;  McLean  v.  Fleming 
(1S77),  !)G  U.  S.  245.  See  in  this 
connection  lilnck  v.  Ehrich  (1891), 
44  Fed.  (C.  C.)  793. 

^Miinro  V.  Tomey  (1891),  120 
N.  Y.  3S;  20  X.  E.  0.  "That 
tlie  plaintiff  would  1)C  entitled 
to  the  protection  of  the  law 
acainst  the  use  by  others  of  the 
words  'Old  Sleuth  Library' 
as  used  to  describe  a  scries  of 
publications,  or  against  the  use 
of  the  name  'Old  Sleuth  the 
Detective'  for  a  wfirk  of  fiction, 
may  l)e  conceded.  That  is  plainly 
ri,i!;ht,  and  in  order  to  alTord  a 
protection    more   adequate   than 


would  be  afforded  by  an  action 
at  law,  the  equity  power  of  the 
courts  might  be  successfully  in- 
voked to  restrain  a  similar  use 
by  others  of  such  names  and  to 
I)revent  a  species  of  literary 
piracy.  This  power  is  exerted 
upon  the  same  principle  uj^on 
which  the  court  acts  in  trade- 
mark cases,  in  restraining  the 
unauthorized  use  of  the  label,  or 
sign,  constituting  the  trade- 
mark." 

*Outcaull  V.  Lamar  (1909),  13.-) 
A.  D.  (X.  Y.)  110;  119  X.  Y. 
Supp.  9.30.  "The  theory  of  the 
complaint  is  that  the  cartoonist 
invented  this  title  and  the.sc 
names,  and  that  he  and  his 
a.s.sociates  were  the  first  to  use 
them  in  connection  with  a  public 
play,  and  that  a  court  of  equity 


406 


THE    LAW   OF   MOTION    PICTURES 


a  series  of  cartoons  called  "Buster  Brown"  and  around 
which  he  had  written  a  play  of  that  name,  could  restrain 
the  defendant  from  producing  a  play  under  a  similar  title, 
under  the  general  equity  powers  of  the  court. 

Earlier  cases  had  paved  the  way  for  tliis  decision  by 
defining  with  precision  the  rights  acquired  in  the  sub- 
stance or  body  of  the  work,  and  the  rights  acquired  in 
the  title. 

Potkr  V.  McPherson  ^  clearly  separates  these  two  rights. 


should  protect  them  in  that 
use  upon  the  principles  upon 
which  trade  names  and  trade 
marks  are  protected  by  the 
courts,  notwithstanding  the  fact 
that  they  are  used  in  connec- 
tion with  a  copyright  or  a  pat- 
ent, Munro  v.  Tovsey,  129  N.  Y. 
.38;  29  N.  E.  9;  Waterman  v. 
Shipman,  130  id.  301;  29  N. 
E.  Ill;  Potter  v.  McPherson,  21 
Hun,  559."  The  court  then  held 
that  the  lower  court  erred  in 
dismissing  the  complaint  and 
directed  a  new  trial. 

See  also:  Aronson  v.  Flecken- 
stein  (1886),  28  Fed.  (C.  C.)  75. 
"...  The  name  given  the  com- 
pf)sition  by  its  author  and  under 
which  it  has  become  known  to  tlu; 
public,  became,  as  it  seems  to  mo, 
a  property  right, — not  strictly 
on  the  j)rincipl('  of  a  trade  mark 
hccHMse  the  narno  iind  hterary 
com[)<jsition  become  blended  and 


united,  so  that  the  name  identifies 
the  composition  to  the  public^ 
so  that  the  name  of  this  composi- 
tion belongs  to  this  complainant 
as  identifying  and  describing  his 
literary  property,  and  as  a  part 
of  the  piece  itself,  and  defendants 
have  no  right  to  profit  by  using 
this  name  to  the  injury  of  com- 
plainant." 

^Potter  V.  McPherson  (1880), 
21  Hun  (N.  Y.),  559.  "Accord- 
ing to  these  principles,  which 
are  well  sustained  by  the  au- 
thorities, so  much  of  the  injunc- 
tion ordered  as  restrains  the  de- 
fendants from  publishing  this 
book  or  any  imitation  of  any 
book  or  pamphlet  representing 
that  sold  by  the  j)laintiiTs  was 
unauthorized  and  to  that  extent, 
it  must  certainly  be  vacated. 
The  only  portion  of  th(>  injunc- 
tion therefore,  concerning  which 
it  can  l>e  claimed  on  the  part  oi 


USING    SAME    OH    SIMILAR    TITLKS  407 

Thoro  tho  work  itself  luid  been  dcdicuted  ))y  its  publica- 
tion witliout  securing  copyright.  Tlie  defendant  I)u1j- 
lishod  a  similar  work  under  a  similar  title.  It  was  held 
that  while  the  plaintiffs  could  not  restrain  defendants 
from  making  use  of  the  substance  of  their  work,  they 
nevertheless  could  enjoin  the  defendants  from  ap- 
propriating their  title;  and  that,  to  accomplish  this, 
they  could  invoke  the  general  equity  powers  of  the 
court. 

To  be  susceptible  of  exclusive  appropriation  by  the 
owner,  the  title  of  a  play  or  motion  picture  must  not  be 
descriptive.  ]\Iuch  has  been  said  on  what  constitutes 
descriptivcness— "words  or  names  which  simply  indicate 
the  quality  or  character  of  the  goods  to  which  they  refer 
are  as  a  rule  words  which  others  may  employ  for  the  same 
purpose  with  equal  truth,  and  hence  cannot  be  exclusively 
appropriated  by  any  one  as  a  trade-mark."  '"' 

tlie  plaintiffs  that  it  should  be  being  appropriated  to  the  busi- 
continued,  is  that  relating  to  tlie  ness  of  otlier  jxirsons." 
title  under  wliich  the  plaintiff's  ^  Frohman  v.  Morris  (1910), 
book  lias  l)e(Mi  i)ubhshed,  for  as  68  Misc.  (N.  Y.)  461;  123  N.  Y. 
to  that,  the  law  does  not  deprive  Supp.  1000.  "Words  or  marks 
them  of  their  riglits  of  property  merely  indieating  superior  ex- 
by  the  mere  publication  and  sale  ccUencc,  popularity  or  universal- 
of  the  book  itself.  That  is  the  ity  in  use,  such  as  'best,'  'favor- 
distinguishing  mark  by  which  ite',  etc.,  cannot  be  exclusively 
their  publication  becomes  known  appropriated  ivs  a  trade-mark, 
in  the  market  and  as  to  that  ....  The  name  of  a  drama  or 
they  have  a  right  to  maintain  other  theatrical  i)roduction  not 
the  exclusive  use  where  it  has  published  as  a  book  cannot,  of 
been  proix-rly  deviseil  for  tlu^  course,  constitute  a  trade-mark, 
purpose  of  maintjiining  their  but  i7  U  a  trade-name,  and  will 
trade,    and    pr«!veiitiiig    it    from  be   protected   against   unauthor- 


408 


THE    LAW   OF   MOTION    PICTURES 


It  is  extremely  rare  that  the  title  of  a  play  is  descriptive, 
for  the  reason  that  this  form  of  literary  creation  does  not 
lend  itself  to  description  in  the  sense  that  commodities 
in  trade  do. 

The  theory  of  descriptiveness,  as  it  has  been  developed 
in  the  law  of  unfair  competition,  is  that  no  one  will  be 
permitted  to  appropriate  to  his  own  exclusive  use  a  word 
or  words  which  describe  the  physical  properties  of  the 


ized  use  or  imitation  amounting 
to  unfair  competition.  In  the 
light  of  these  principles  it  is  evi- 
dent that  no  one  can  appropriate 
a  trade-mark  or  title  which  de- 
scribes the  thing  to  which  it  is 
affixed.  Thus,  no  one  could  ap- 
propriate the  word  'play,'  or 
'dramatic  composition,"  'comedy,' 
'farce,'  'tragedy'  or  any  similar 
word  in  connection  with  a  stage- 
production,  because  it  describes 
the  thing  itself." 

Social  Register  Ass^n  v.  Hoio- 
ard  (1804),  60  Fed.  (C.  C.)  270. 
"These  words  'Social  Register,' 
are  clearly  selected  arbitrarily 
to  designate  the  pul)lication  of  the 
complainant,  and  cannot  be  projv 
erly  called  descriptive,  in  any 
sen.se.  Hence,  the  words,  when 
chosen,  a.ssociated  together,  and 
applied  to  a  list  of  p<>rsons  se- 
lected at  will  by  the  compiler, 
as  in  the  ca.se  at  bar,  become  a 
trade-mark,  and  are  entitled  to 


protection  as  such.  It  is  not 
necessary  to  cite  authorities  to 
sustain  this  statement." 

But  see:  Isaacs  v.  Daly  (1874), 
7  Jones  &  Spencer  (N.  Y.)  511. 
Plaintiff  copyrighted  a  play  called 
"Charity."  Shortly  thereafter 
defendant  became  the  owner  of  a 
play  under  the  same  title.  The 
court  denied  injunction  on  the 
ground  that  the  word  "charity" 
is  "a  virtue  that  has  been  sym- 
bolised and  portrayed  in  every 
stage  and  department  of  art  for 
all  ages." 

The  defendant  had  acted  in 
good  faith,  and  the  court  denied 
injunction. 

We  tliink  that  this  decision 
is  unsound,  and  is  not  expressive 
of  the  law  a.s  it  exists  to-day. 
No  matter  what  the  title  is,  or 
what  it  symbolizes  or  embodies, 
once  it  is  attached  to  a  play 
or  motion  picture  and  becomes 
known  to  the  pui)lic,  it  accjuires 


USING    SAME    OK   SIMILAK   TITLES 


400 


articlo;^  for  if  that  woro  done,  others  seUing  the  same 
romniodity  might  be  hindered  from  uecurately  deserih- 
ing  their  own  property.'* 

Thus,  every  man  may  offer  for  sale  "tan  shoes"  or 
"black  shoes"  or  "women's  shoes,"  but  when  one  calls 
his  shoes  "The  American  Girl"  he  chooses  an  altogether 
arbitrary  title  which  does  not  describe  any  physical  prop- 
erty in  the  article  and  he  may  prevent  others  from  using 
the  same  title.^ 


a  secondary  meaning  in  conjunc- 
tion with  such  work,  and  is 
from  that  time  on  entitled  to  the 
protection  of  the  courts. 

^  Welcome  v.  Thompson  (Eng.) 
(1904),  1  ("h.  7;i6.  "Wlien  one 
is  deuhng  with  tiiis  question  of 
whether  a  word  is  descriptive, 
I  think  one  must  always  bear  in 
mind  that  for  a  word  really  to  be 
descriptive  it  must  describe  some- 
thing which  is  material  to  the 
composition,  i.  e.,  the  cjuality, 
form  or  purpose  of  the  article  to 
which  the  trade-mark  is  intended 
to  a|)ply." 

"Sctcliuw  V.  Baker  (188,3),  93 
N.  Y.  59.  "The  reason  for  not 
permitting  names,  descriptions  of 
the  article  or  its  component  jjarts, 
to  b(>  a|)pro|)riated  a.s  trade- 
marks is  that  inasmuch  as  all 
persons  have  an  etiual  rimht  to 
jjroduce  and  vend  similar  ar- 
ticles, they  also  have  the  right  to 


properly  describe  them  and  to 
use  any  appropriate  language 
in  words  for  that  purpose,  and 
no  i^erson  can  appropriate  to 
himself  exclusively  any  word 
or  exi)ression,  properly  descrip- 
tive of  the  article,  its  qualities, 
ingredients   or   characteristics." 

'^  Ridgiray  Co.  v.  Amalgamated 
Press  (Kng.)  (1911),  28  T.  L.  R. 
149.  PlaintifTs,  American  pul> 
lishers  of  "Everybody's  Maga- 
zine," issued  monthly  and  sold 
at  a  shilling,  brought  action  to 
restrain  defetulants  from  selling 
a  |)eriodical  called  "Everybody's 
Weekly"  issucxl  weekly  and  .sold 
for  a  penny. 

Held  that  these  publications 
were  not  likely  to  comjx?te  with 
each  other.  Also  that  the  court 
could  not  restrain  the  use  of  a 
coimnon  and  popular  expression 
like  "  I'lverybody's." 

Ilamillon    Shoe    Co.    v.     WolJ 


410  THE    LAW   OF   MOTION   PICTURES 

Thus,  any  producer  may  apply  the  terms  ''play," 
''sketch,"  "drama,"  "act"  to  his  film  without  fear  of 
restraint  by  another  who  has  used  that  same  word  as 
the  title  of  his  motion  picture;  but  if  he  adopts  a  word 
such  as  "The  Rosary"  or  "Life"  or  phrases  such  as 
"Home  Comfort"  or  "A  Fool  There  Was"  and  his  Uterary 
work  becomes  known  to  the  pubhc  under  such  title, 
equity  will  protect  him  in  his  exclusive  use  of  such  word 
or  expression. 

But  in  order  to  receive  this  protection,  there  must  be 
such  use  of  the  title  that  it  will  have  acquired  a  secondary 
meaning,  and  the  pubhc  will  have  identified  it  with  the 
particular  play  or  motion  picture.  The  first  one  to  make 
use  of  the  title  is  entitled  to  it  as  against  all  subsequent 
persons.^"  Priority  of  actual  use  in  point  of  time  is  the 
test.  "Priority  of  use  rather  than  priority  of  invention 
confers  the  right."  ^^ 

(1916),240U.  S.  251;36Sup.  Ct.  that    plaintiff    was    entitled    to 

409.  maintain  his  action  for  injunc- 

^^  Broadliurst  v.  Nichols   (Aus-  tion.upon  the  ground  that  the 

traha)  (1903),  N.  S.  W.  3;  S.  R.  reputation  acquired  by  the  play 

147.    Plaintiff's  play  "The  Wrong  elsewhere  gave  rise  to  plaintiff's 

Mr.  Wright"  had  been  produced  cause  of  action, 

in    England,    America    and    in  See  also:  Columbia  Mill  Co.  v. 

parts  of  Australia.     Defendants  Alcorn    (1893),    ir)0   U.    S.   460; 

threatened  to  produce  an  entirely  14  Sup.  Ct.  UA ;  Caswell  v.  Hazard 

dissimiliar   play   under   the  title  (1S90),  121  N.  Y.  4S4;  24  N.  E. 

"The  Wrong  Mrs.  Wright"  in  a  707. 

placein  Australia  where  the  plain-  ^^  George  v.   Smith   (1892),   52 

tilT's  play  had  not  yet  been  per-  Fed.  (C.  C.)  S^iO.    "  It  is  the  party 

formed       and       as       defendants  who  uses  it  first  as  a  brand  for 

claimed,    where    jjlaintifT's    play  his  goods,  and  l)uilds  up  a  l)usi- 

was    entirely     unknown.       Held  ness  under  it,  who  is  entitled  to 


IISINCi    SAMK    Olt    SIMlLAlt    'J'lTLKS  111 

Tho  monopoly  of  the  title  is  arquirod  by  him  who  lirst 
appr(»|)riat('s  and  not  by  tho  man  who  was  the  first  to 
suggest,  design,  invent  or  conceive  the  title:  So  that  a 
mere  deposit  of  the  work  and  title  in  the  office  of  the 
Register  of  Copyrights  is  not  actual  user.'-  And  if  one 
releases  a  motion  j)icture  jirior  to  another  motion  picture 
having  the  same  title,  which  has  been  previously  copy- 
riglited,  ))ut  not  released,  e(iuity  will  protect  tho  former, 
for  that  one  is  entitled  to  the  benefits  accruing  from  prior 
user.  The  l)urden,  however,  is  upon  the  plaintiff  to  show 
that  he  was  the  first  to  use  the  title.''' 

But  it  is  interesting  to  note  that  the  cases  are  not  very 
clear  as  to  what  constitutes  prior  user. 

A  situation  may  arise  where  two  motion  pictures  are 
being  made  simultaneously,  and  in  good  faith  the  same 

protection,  and  not  the  one  who  others    wlio    have    applied    such 

first  thouglit  of  using  it  on  simi-  title  to  a  dramatic  composition 

lar   goods,    but   did    not    use   it.  f(>uiid(Hi  on  the  same  story,  before 

The  hue  ilcaU  with  ads,  rwt  in-  the  date  of  such  deposit. 

tentions."    (p.  832).  ^^  Spiegel  v.  Zuckcrman  (1910), 

See  also:   Walter  Baker  Co.  v.  175  Fed.  (C.  C.)  978. 

Delapcnha   (190S),   100  Fed.   (C.  See  also: //i7.son  v.  Fos/er  (1897), 

C.)  740.  SO  Fed.  (C.  C\)  890.     Not  only 

^*  Dickey  \'.  Mutual  Film  (\[)Kt),  the    intrinsic   merit   of   a   work, 

160  N.  Y.  Supp.  ()09.  but  the  amount  of  publicity  and 

See  in  this  connection:  lienn  v.  advertising  given  thereto  and  the 

Le  Clerq  (lS7;i),  3  Fed.  ('as.  130S.  popularity  derived  therefrom  will 

Held  that  a  person  who  deiK)site(l  be   considered    by    the   court    on 

in  the  copyright  ollice  the  title  the  question  of  unfaircom|x'tition. 

of   a   drama,    not   original    with  See    also:    Selig    Polyscope    v. 

himself,  did  not  secure  to  himself  I'tiicorn  (1917),  10.'?  X.  Y.  Supp. 

such    title    to    the    exclusion    of  62. 


412  THE    LAW   OF   MOTION    PICTURES 

title  is  applied  to  each.  The  period  intervening  between 
the  release  of  the  two  films  may  be  very  short. 

It  is  doubtful  whether  the  courts  will  enjoin  the  one 
released  subsequent  in  point  of  time.  The  court  will 
probably  direct  that  each  producer  affix  to  the  title  some 
name  or  phrase  which  will  enable  the  pubfic  to  distinguish 
between  the  two,  and  thus  avoid  confusion  or  deception. 

In  a  late  Canadian  case,^^  a  closely  analogous  situation 
was  presented  to  the  court  in  the  case  of  two  books.  One 
book  was  entitled  The  New  Canadian  Bird  Book  and 
the  other  The  Canadian  Bird  Book.  A  period  of  about 
three  months  intervened  between  the  publication  of  the 
books.  The  court  held  that  the  publication  of  the  first 
book  The  New  Canadian  Bird  Book  was  not  such  a  prior 
user  of  the  title  as  to  entitle  the  plaintiff  to  an  injunction. 

But  where  the  defendant  has  had  knowledge  of  the 
plaintiff's  title  and  then  has  applied  the  same  to  his  own 
motion  picture,  it  matters  not  that  the  priority  of  the 

^^Mclndoo  V.  Musson  Book  Co.  subject  of  copyright;  second  that 

(Can.)  (1915),  35  O.  L.   R.  42.  in  order  to  succeed  plaintiff  was 

Plaintiff  published  a  book  entitled  required  to  show   that  his  book 

"The  New  Canadian  Bird  Book"  had  become  known  to  the  public 

wliif^h  he  copyriglitcd.   Defendant  and  sought  for  under   the   title 

published  a  book  entitled  "The  adopted  by  him,  and  furthermore 

Canadian  Bird  Book."  There  was  the  fact  that  plaintiff  published 

no    claim    that    defendant    used  his  work  three    or  four  months 

any  of  plaintiff's  material.  Action  before   defendant    published    his 

was   brought  fird   on   copyright,  work     did    not    establish     such 

second  on  theory  of  trade  name,  prior  user  as  to  entitle  plaintiff 

Ilelfl:  first  that  unless  the  "title  to  an  injunction. 

its(!lf    amounted    to    a    literary,  Rose    v.     McLean    Publishing 

scientific  or  artistic  work  or  com-  Co.  (Can.)  (ISOO-T),  27  O.  U.  .'V25; 

jKJsition"    it   could    not    be    the  24  A.  R.  240  distinguished. 


USING    SAME    OH    SIMILAR    TITLES  llii 

I)luiiililT's  use  was  for  u  short  tiiiiL'.  An  iiiturvul  of  a  day, 
in  that  case,  would  be  sufficient  prior  user  to  entitle  the 
plaintiff  to  an  injunction. 

And  even  where  the  plaintiff  has  stopped  the  i)roduc- 
tion  of  his  work  for  a  short  time,  another  may  not  step 
in  with  a  work  under  a  similar  title.  ^^ 

We  have  thus  far  discussed  the  elements  nece^^sarj-  to 
maintain  an  action  to  enjoin  the  use  of  the  same  or  similar 
title,  assuming  that  the  title  in  each  instance  was  applied 
to  a  motion  picture. 

As  between  a  play  and  a  motion  picture  it  has  been 
settled  by  the  decisions  of  Harper  v.  Kakm  and  Frohman 
V.  Fitch,  that  both  are  dramatic  works,  and  that  one  may 
be  in  competition  with  the  other.  ^"^ 

Several  cases  have  arisen  in  this  country'  wherein  the 
proprietor  of  a  dramatic  composition  has  attempted  to 
enjoin  the  production  of  a  motion  picture  under  the  same 
title  under  which  his  play  was  performed  before  the 
public. 

The  first  case  in  which  this  question  arose  was  that  of 
the  Miracle  Co.  v.  Damiger.^''    In  that  case  the  i)laintiff 

"Janricy    v.    ran-Coast    Vcn-  '•For  full  discussion  of  these 

tilator  Mfg.  Co.  (1904),  12S  Fed.  two  eases  see  Section  1. 

(C.  C.)  121.    Held  tlmt  the  fact  "  Miracle      Co.     v.     Danzigcr 

that    plaintiff    was    not    nianu-  (1913),  N.  Y.  Law  Journal,  March 

facturinp;    the    patented    article  S.      "  The  plaintiff.s   Ma.x    Rciii- 

and  iilaciiiR  the  same  uix)n  the  hardt  and   Karl   Volhnoeller  are 

market  under  its  trade  name  at  the  owners    and    producers  of    a 

the  time  of   the    commencement  pantomime  play,  known  as  'The 

of  the  suit   was   no   defense   to  Miracle.'      This   play   was   pro- 

an  action  for  unfair  use  of  plain-  duced  with  preat  success  in  Ix)n- 

tiff's  trade  name.  dou.     The  plaintiff,  the  Miracle 


414 


THE    LAW   OF   MOTION    PICTURES 


which  was  the  owner  of  the  production  rights  of  Maeter- 
Unck's  play  called  "The  Miracle,"  sought  to  enjoin  the 

the   defendant's   play   is   similar 
to    the    plaintiff's    play    except 


Co.  Inc.,  acquired  the  exclusive 
cinematograph  rights  in  this  play 
or  spectacle  for  the  United  States 
and  Canada  in  April,  1912.  The 
play  has  been  reproduced  on 
films  for  moving  pictures  and 
these  films  were  produced  at  the 
Park  Theatre  in  the  City  of  New 
York  on  February  17th,  1913. 
It  appears  that  prior  to  the  time 
when  the  Miracle  Co.  acquired 
the  exclusive  rights  to  this  play 
the  defendants  arranged  with  a 
German  corporation  for  the  pro- 
duction of  a  moving  picture 
play  under  the  same  name  of 
'The  Miracle.'  Since  May,  1912 
they  have  been  advertising  this 
film  for  rental  under  the  name  of 
'Tlie  Miracle'  and  actuall}'- 
produced  tlie  film  before  the 
l)laintiffs.  The  Miracle  Co.  pro- 
duced its  play  hero,  but  after 
it  had  notice  of  plaintiff's  claim 
to  the  exclusive  right  to  produce 
such  play.  TIk^  plaj^  owned  by 
the  plaintiff  and  the  play  owned 
by  the  defendant  arc  both  founded 
upon  an  old  legend  of  :i  miracle 
of  St.  lieatrice.  The  legend  iu;- 
came  famous  when  dramatized 
by  Maeterlinck  under  the  title 
of  Sister  Hoatriee.  It  is  not 
claimed  on  this  ujjplication  that 


that  they  are  both  founded  on  the 
same  legend,  nor  is  it  claimed  that 
the  plaintiffs  have  any  copyright 
on  that  legend.  The  claim  is 
simply  that  the  defendants  are 
engaged  in  an  unfair  competition 
in  that  by  using  the  name  of 
'  The  Miracle '  they  are  inten- 
tionally deceiving  or  tending  to 
deceive  the  public  into  the  belief 
that  their  play  is  the  play  pro- 
duced in  London  under  the  same 
title  and  to  which  the  plaintiffs 
have  the  exclusive  rights.  I 
have  no  doubt  that  the  defend- 
ants in  using  the  name  'The 
Miracle'  for  their  play  are  trying 
to  obtain  the  benefit  of  the  repu- 
tation of  the  London  production. 
While  the  title  is  not  wholly 
fanciful  and  bears  a  direct  rela- 
tion to  the  sul).iect  matter  of  the 
plaj'^  and  is  to  some  extent  de- 
scriptive of  that  subject  matter, 
yet  the  legend  of  the  miracle  of 
St.  Beatrice  is  not  so  well  known 
that  it  has  even  been  known  or 
even  could  be  appropriately  called 
'The  Miracle.'  It  seems  to  me 
that  it  is  absolutely  improbable 
that  any  person  attempting  to 
dramatize  this  legend  would  call 


USING    SAMK    OU    SIMILAR    TITLKS 


415 


exhibition  of  ;i  motion  i)i('tiin'  of  the  same  title.    A  t'em- 
porary  injunction  was  granted. 

remains  that  when  the  defendant 
first  used  the  name  it  wa.s  coupled 
with  an  oix'n  intent  to  deceive  the 


it  'The  Miracle'  except  with 
intent  to  ohtain  the  benefit  of 
the  reputation  of  the  earli(!r 
play  ('alle(l  by  this  name.  Kvvn 
though  the  plaintiffs  may  not 
have  an  exclusive  right  to  the 
name,  they  have  to  the  enjoining? 
of  others  from  usins  that  name  in 
such  manner  a-s  would  intention- 
ally deceive  the  public.  In  this 
case  too,  the  intent  to  deceive 
the  public  into  the  belief  that  the 
defendant's  play  is  really  a  re- 
production of  the  play  owned 
by  the  plaintiff  rests  not  alone 
on  the  improbability  of  the  same 
name  havinp  been  dioscn  without 
any  intent  to  appropriate  the 
benefit  of  the  reputation  of  the 
plaintiff's  play,  but  as  a  fair 
inference  from  the  undisputed 
facts.  The  defendants  originally 
adverti.sed  their  film  as  'The 
Miracle — the  one  million  dollar 
spectacular  production  played  at 
the  Olympia,  bontlon,  for  more 
than  a  year.'  It  is  true  that  they 
discontinued  all  reference  to  the 
London  production  when  plain- 
tiffs notified  them  that  they  would 
restrain  any  attempt  on  their 
part  to  use  the  name  'The  Mir- 
acle' as  the  title  of  any  hlms 
of  moving  pictures,  but  the  fact 


public.  Moreover,  it  is  shown 
that  even  thereafter  and  on  July 
9  one  of  these  defendants  wrote 
to  a  motion  picture  exhibitor 
a  letter  describing  the  film  which 
contained  the  significant  words, 
'We  are  being  advised  now  by 
our  attorney  that  may  give  us 
rights  to  use  the  music  that  was 
written  for  the  original  play.' 
These  words  can  onlj'  refer  U)  the 
Ilumperdinck  nmsic  written  for 
the  original  play  in  Europe, 
and  shows  to  my  mind  clearly 
an  attempt  to  appropriate  the 
reputation  of  that  play.  We 
have  therefore  the  following  points 
clearly  shown:  First,  that  plaintiffs 
are  the  owners  and  assignees  of 
the  play  which  ha.s  achieved  a 
great  reputation  in  Euroixj  under 
the  name  'The  Miracle;'  Second, 
the  defendants  are  offering  a  film 
of  another  play  under  the  .same 
title,  founded  on  the  same  sul> 
ject;  Third,  the  defendant  se- 
lected his  title  with  knowledge 
that  it  had  clearly  l)een  appro- 
priated by  the  owners  of  the 
first  play;  Fourth,  the  title  is  not 
so    descriptive    of    the    subject 


416 


THE    LAW   OF   MOTION   PICTURES 


Then  came  the  case  of  Marc  Klaw  v.  The  General  Film 
Co.,^^  where  the  plaintiffs,  the  producers  of  a  play  entitled 
matter  of  the  play  that  it  would      of    theatres,    the    equipment    of 


naturally  be  used,  except  for  a 
desire  to  obtain  the  benefit  of 
the  reputation  of  the  original 
play;  Fifth,  this  desire  is  clearly 
shown  by  the  defendant's  acts  in 
offering  their  films  to  the  public. 
Sixth,  the  natural  result  of  the 
defendant's  acts  is  to  deceive  the 
pubUc.  Under  the  circumstances 
it  seems  to  me  that  the  plaintiffs 
are  clearly  entitled  to  the  in- 
junctive relief  demanded.  Mo- 
tion granted." 

^^  Klaw  V.  General  Film  Co., 
New  York  Law  Journal,  March  4, 
1915;  154  N.  Y.  Supp.  988;  affd 
171  A.  D.  (X.  Y.)  945;  156  N.  Y. 
Supp.  1128.  Platzek,  J:  "  Some 
five  years  ago  Robert  Hilliard,  one 
of  the  plaintiffs,  a  popular  and 
gifted  actor,  first  produced  an 
elaborate  dramatic  production 
entitled  "A  Fool  There  Was," 
at  the  Lil)crty  Theatre,  in  the 
City  of  New  York.  From  that 
time  the  play  has  been  presented 
and  is  now  being  produced 
throughout  the  United  States 
and  Canada  with  .success,  both 
from  an  artistic  and  financial 
standpoint.  Large  sums  of  money 
iiave  boon  exponflod  by  the  plain- 
tiffs for  actors,  actresses,  hiring 


the   play   and   in   extensive   ad- 
vertising for  more  than  four  years. 
After    the    dramatic    representa- 
tion  "A  Fool  There  Was"   ac- 
quired a  reputation,  and  its  title 
became  well  known,  the  defend- 
ant   appropriated    the    title    "A 
Fool  There  Was"  and  produced  it 
in    connection    with    one    of    its 
photo    dramas,   with   knowledge 
that  the  plaintiffs  had  been  and 
were  producing  a  dramatic  rep- 
resentation under  such  title.     It 
appears  that  the  title  "A  Fool 
There  Was"  is  an  original  title 
in  connection  with  a  play,  and 
that  no  other  play  under  such 
title  was  presented  prior  to  the 
production  of  the  drama  by  Rob- 
ert Hilliard.     The   circumstance 
that  defendant's  play  is  dissimiliar 
to  plaintiff's  play  or  that  it  was 
produced  as  a  photo  play  does  not 
militate    against    their    right    to 
enjoin  the  appropriation  of  and 
use  by  the  defendant  of  the  title. 
"The    question,    'What's    in    a 
name?'  has  been  answered  by  the 
courts   in   many   well   considered 
cases,  wliere  the  exclusive  rigiit 
to  a  name  possessed  or  owned  by  a 
successful  business  enterprise  lias 
been   niaintaincd   against   imita- 


USING   SAME    OR   SIMILAR    TITLES 


417 


"A  Fool  There  Was"  secured  an  injunction  against  the 
defendant  which  had  produced  a  motion  picture  under 
the  same  title. 

is  a  new  and  original  dramatic 
arrangement.  It  is  a  fraud  upon 
the  public,  as  iccU  as  upon  the  com- 
plain-ant,  to  attempt  to  do  so."  In 
Ball  V.  Broada-ay  Bazaar,  104 
X.  Y.  435,  Werner,  J.,  writing 
for  the  court,  says:  "Although  we 
agree  with  the  learned  AppeUate 
I)ivi.<ion  in  recognizing  the  tech- 
nical di.stinction  between  trade 
marks  and  trade  names,  we  think 
the  same  fundamental  principles 
of  law  and  equity  are  applicai)lc 
to  both.  '.\11  such  cases,  whether 
of  trade  mark  or  trade  name  or 
other  unfair  use  of  another's 
reputation,  are  concerned  with 
an  injurious  attack  upon  the  good 
will  of  a  rival  business;  customers 
are  diverted  from  one  trader 
to  another,  and  orders  intended 
for  one  find  their  way  to  the  other' 
(Sebastian  on  the  Law  of  Tratle 
Marks,  p.  17).  Trade  marks  and 
trade  names  are  in  reality  anal- 
ogous to  the  good  will  of  the 
business  to  which  they  apixr- 
tain.  The  trade  mark  represents 
it  in  the  market,  and  the  trade 
name  proclaims  it  to  those  who 
pass  tlie  shop.  In  either  case 
such  unfair  conduct  as  is  calcu- 
lated to  deceive  the  public  into 


tors  and  wrongdoers  who  sought 
by  an  unauthorized  use  to  de- 
ceive the  public  and  profit  by 
the  wrong."  Frohman  v.  Payton, 
34  Misc.  275;  Hopkins  Ajiius.  Co. 
V.  Frohman,  202  111.  541;  Oul- 
cault  V.  Lamar,  135  App.  Div. 
110;  38  C'yc.  837.  In  Aronson  v. 
Fkckenstcin,  28  Fed.  Rep.  75,  it 
is  stated:  "The  name  given  the 
composition  by  its  author,  and 
under  which  it  has  become  known 
to  the  public,  became,  as  it  seems 
to  me,  a  property  right — not 
strictly  on  the  principle  of  a 
trade  mark,  but  because  the  name 
and  literary  composition  became 
blended  and  united,  so  that 
the  name  identifies  the  composition 
to  the  public — so  that  the  name  of 
this  composition  belongs  to  this 
complainant  as  identifying  and 
describing  his  literary  property 
and  as  a  part  of  the  piece  itself, 
and  defendants  have  no  right  to 
profit  by  using  this  name  to  the 
injury  of  the  complainant,  .... 
and  defendants  have  no  riglit  to 
avail  themselves  of  the  merits 
and  popularity  of  complainant's 
play  to  draw  audiences  to  the 
performance  of  theirs,  even  if, 
as  is  claimed,  their  composition 


418 


THE   LAW   OF  MOTION   PICTURES 


The  case  of  Paul  Dickey  v.  Mutual  Film  Corporation 
followed. ^^    Dickey,  the  author  as  well  as  the  proprietor 


believing  that  the  business  of  the 
wrongdoer  is  the  business  of 
him  whose  name,  sign  or  mark 
is  simulated  or  appropriated, 
constitutes  the  gist  of  the  offense." 
It  was  also  held  in  this  case  that 
"trade  names  are  protected  by 
the  application  of  the  same  prin- 
ciples of  equity  that  relate  to 
technical  trade  marks,"  Howard 
V.  Henriques,  3  Sandf.  S.  C.  725; 
Glen  &  H.  Mfg.  Co.  v.  Hall,  61  N. 
Y.  226;  Paul  on  Trade  Marks, 
sec.  182.  It  is  not  disputed  that 
plaintiffs'  play  was  produced 
with  success  by  leading  actors 
and  actresses  in  the  principal 
cities  of  the  United  States,  and 
was  a  valuable  theatrical  pro- 
duction. It  is  not  disputed  that 
the  defendant  presented  a  moving 
picture  presentation  under  the 
title  "A  Fool  There  Was."  It 
affirmatively  appears  tha.t  the 
defendant  produced  its  photo 
play  under  said  title  in  different 
cities  of  the  Union  no  less  than 
three  thousand  times  without 
authority.  In  Kalem  Compamj 
V.  Harper,  222  U.  S.  55,  it  is  held 
that  the  owner  of  dramafic 
rights  might  fort)ic|  the  dramatic 
representation  by  moving  pictures 
and  to  the  present  time  the  only 


right  to  protect  moving  pictures 
arises  from  the  words  "dra- 
matic" or  "drama."  Photo  Drama 
Co.  V.  Social  Corp'n,  213  Fed. 
Rep.  374-377;  Atlas  Mfg.  Co.  v. 
Smith,  204  Fed.  Rep.  398;  Froh- 
man  v.  Fitch,  149  N.  Y.  Supp.  633. 
The  plaintiffs  have  established 
and  acquired  an  exclusive  pro- 
prietary right  as  a  trade  name  and 
trade  mark  in  the  words  "A  Fool 
There  Was"  as  a  title  in  con- 
nection with  their  play,  and  that 
they  are  entitled  to  a  permanent 
injunction  restraining  the  de- 
fendant from  the  continuance 
of  the  infringement  and  impair- 
ment of  their  right  in  and  to  such 
trade  mark  or  trade  name.  Judg- 
ment for  plaintiffs.  An  inter- 
locutory decree  may  be  entered 
herein  making  final  the  injunc- 
tion to  restrain  defendant  from 
the  further  use  of  the  title  "A 
Fool  There  Was"  and  for  an 
accounting  by  the  defendant, 
and  for  tliis  purpose  tlie  appoint- 
ment of  a  referee." 

">  Dickey  v.  Mutual  Film  Corp. 
(1916),  160  N.  Y.  Supp.  609. 
Clark,  J:  "This  is  an  action  for 
an  injunction  and  an  accounting. 
Plaintiff  is  a  dramatic  writer. 
Defendant  is  a  moving  picture 


USING    SAME    OIL   SIMILAR   TITLES 


•il'J 


of  a  onp-act  play  entitled  " 
enjoin  the  defendant  from 

producer.  Plaintiff  wrote  a  one- 
uct  play  called  "The  Come- 
Back"  which  was  produced  on 
the  stage  fii>>t  in  March,  1911. 
It  lias  hocii  jjroduced  a.s  recently 
as  March,  l'.)L").  Defendant  has 
since  at  lea.st  June,  1915,  pro- 
duced upon  the  screens  a  photo- 
play called  "The  Come-back." 
It  is  not  claiinod  tliat  the  story 
of  the  i)lay  and  the  photoplay 
are  similar;  indeed,  the  sole 
similarity  is  in  the  title.  I  shall 
hold  that  although  not  now  actu- 
ally being  produced,  plaint iff'.s 
play  is  sullicicntly  of  value  to  be 
the  subject  of  loss  from  competi- 
tion, and  that  the  name  "The 
Come-Back"  is  not  descriptive 
but  fanciful  and  therefore  sub- 
ject in  a  proper  case  to  the  pro- 
tection of  an  equity  court.  In 
the  first  place  I  do  not  think  tluit 
the  prior  copyright  of  two  dra- 
matic compositions  under  a  sim- 
ilar name  affects  plaintiff's  rights. 
The  title  not  being  sul)ject  to 
copyright,  its  use  is  protectee! 
uruler  the  e(juitable  rule  appli- 
cable to  trade  marks;  that  is, 
priority  of  actual  use  gives  prior- 
ity of  right  to  use  and  to  pro- 
tection. Colunihid  Mill  Co.  v. 
Atcurn,  loO  U.  S.  400,  463.     De- 


The  C(jme-Back,"  bought  to 
exhiljiting  a  film  under  the 

fendant's  chief  defense  is  that 
the  case  is  merely  one  of  ctjinci- 
dence,  and  that  not  every  case 
of  coincidence  is  unfair  competi- 
tion, at  Iciist  in  the  ab.sence  of 
fraudulent  intent.  I  do  ntjt  think 
that  fraudulent  intent  is  involved 
in  this  ca.se.  It  is  true  that  coin- 
cidence in  title  is  not  per  se  un- 
fair competition,  as  witness  nu- 
merous ca.ses  cited  by  defendant, 
beginning  with  the  Apthorp  case, 
Astor  V.  Wed  62 nd  St.  Really  Co., 
107  App.  Div.  27."i.  The.se  cases, 
as  I  read  them,  are  decided  on 
the  ground  that  no  competition 
exists.  For  instance,  the  Ap- 
thorp case  held  that  there  was  no 
coiniHjtition  between  a  hotel  and 
an  apartment  house.  In  the  case 
of  Atlwi  v.  Street  &  Smith,  204 
Fed.  388,  it  was  held  that  there 
was  no  comiK'tition  between  nov- 
els and  moving  pictures  of  the 
.same  titles.  It  is  clear  that  com- 
petition may  exist  between  a 
play  and  a  photoplay,  and  that 
an  injunction  may  arise  from  the 
mere  u.se  of  a  similar  title  I 
think  is  held  by  the  case  of 
Frohman  v.  Morris,  68  Misc.  46, 
Khuc  ct  Krlanger  v.  General 
Film  Co.,  I'A  N.  Y.  Supp.  9S,S 
and  Frohman  v.  Paytoti,  34  Misc. 


420 


THE    LAW   OF   MOTION   PICTURES 


same  title.    Here  again,  an  injunction  was  granted.    In 
another  action  the  same  plaintiff  enjoined  another  motion 


275.  An  injunction  must  there- 
fore be  granted  in  the  present 
case.  On  the  question  of  an  ac- 
counting it  appears  that  plain- 
tiff had  submitted  his  play  in 
three-act  form  to  various  the- 
atrical managers  and  moving 
picture  producers  subsequent  to 
defendant's  production  and  that 
it  had  been  rejected.  This  is 
sufficient  evidence  of  damages 
and  loss  of  profits  to  allow  an 
accounting.  Defendant  contends 
that  where  no  fraud  is  found 
there  can  be  no  accounting  or 
damages.  The  rule,  as  I  read  the 
cases,  is  rather  that  in  case  of 
innocent  competition  courts  arc 
reluctant  to  decree  an  accounting 
and  damages.  While  not  spe- 
cifically finding  fraud  or  inten- 
tional unfair  competition  here, 
I  nevertheless  feel  that  on  the 
facts  the  case  is  one  for  an  ac- 
counting and  damages  to  be 
determined  by  a  referee  to  be 
appointed  for  tli(^  purpose." 

See  also:  Thonids  v.  Abraham- 
sun  (1916),  N.  Y.  Law  Journal, 
August  :n.  "  Motion  for  injuiic- 
ti(jn  pendente  lite  restraining  the 
use  by  tlie  dcfciKl.'iiit  of  tlic  titl(> 
'Her       Husband's       Wife'        is 


granted.  Klaw  v.  General  Film 
Co.,  154  N.  Y.  Supp.  988;  Dickeij 
v.  Mutual  Film  Corp'n,  N.  Y. 
Law  Journal,  August  11,  1916." 

See  also:  Henry  W.  Savage,  hic, 
V.  Kerker  (1914),  N.  Y.  Law 
Journal,  April  25th.  "The  fact 
that  the  title  of  'Magda,  the 
Modern  Madame  X,'  which  was 
assumed  by  the  defendant  for  his 
films,  is  being  used  to  deceive  the 
public,  is  clearly  shown  by  the 
method  adopted  in  some  of  his 
advertisuig,  where  the  words 
'Madame  X'  are  made  unduly 
prominent,  being  printed  in  much 
larger  type  than  any  other  words 
and  separated  from  the  descrip- 
tive a(lj(H'tivc  and  given  an  entire 
line  in  hca\-y  block  type;  nor  is 
this  avoided  by  the  note  in  small 
type  on  one  of  defendant's  ad- 
vertisements that  'this  produc- 
tion is  not  taken  from  a  play  with 
a  title  somewhat  similar,'  for 
other  advertisements  issued  by 
those  to  whom  defendant  has 
sold  the  lihns  refer  to  tliom  as  'The 
original  and  only  production  of 
this  wonderful  play,  Madame 
X.'  For  the  protection  of  the 
jjiibUc  from  deception  ;ui(l  to 
prevent   unfair   competition   the 


USINO    SAME    OR   SIMILAR   TITLES 


421 


pioturo  distributor  from  oxhihitinp;  a  film  produced  under 
the  siiiiie  naiiie.  " 


plaintiff  is  entitled  to  have  the 
injunetioii  coiitimied  during  the 
pendency  of  the  action." 

*"  Dickey  v.  Metro  Pictures 
Cor])oralion  (1917),  N.  Y.  Law 
Journal,  April  28.  Platzek,  .1: 
"There  can  \>r  no  doulit  that 
plaintiff  i.s  entitled  to  the  injunc- 
tion j)rayed  for,  Klnw  v.  General 
Film  Co.,  \'y\  X.  \.  Supp.  988; 
aff'd  171  Apj).  Div.  !»!.");  but  I 
think  the  further  relief  demande<:l 
must  be  largely  curtailed. 

The  ca.se  rests  on  the  theory  of 
unfair  competition.  It  can,  there- 
fore, on'v  be  sustained  by  show- 
ing that  the  defendant  knew  of 
plaintifi's  prior  use  of  the  title 
in  question  while  itself  making 
u.se  of  the  same  title.  This  is 
shown  as  to  defendant's  use  of  the 
title,  which  is  admitted  by  the 
answer,  at  times  sul)s(Hiuent  to 
the  date  when  notice  of  i)laintiff's 
claim  was  jiroved  to  have  been 
given,  lis  use  prior  to  that  time 
appears  to  have  been  only  a  coin- 
cidence. It  was  innocent  and 
accidental. 

Plaintiff  did  not  undertake  to 
show  when  the  letter  written  by 
his  attorney  on  Saturday,  .\pril  '11, 
1910,  was  received  by  the  de- 
fendant.    The   testinionv   of   the 


defendant's  witne.ss  on  the  pcjint 
Ls  not  as  clear  as  it  might  be  but 
in  one  place  he  testifies  that  it 
was  not  received  until  Monday, 
the  24th,  the  day  when,  in  the 
ordinary  cf)urse  of  business,  the 
defendant  released  its  films 
throughout  the  country.  In  the 
absence  of  any  evidence  on  the 
point  on  the  part  of  the  plaintiff 
I  shall  find  that  it  was  received 
on  April  24th,  and  the  account- 
ing which  may  include  damages 
and  profits,  {Sharpless  v.  Laio- 
rencc,  213  Fed.  Kep.  420;  ;i8 
Cyc.  908,  913),  must  be  limited 
to  damages  sustained  and  profits 
derived  from  .sales,  leases  or  other 
dis]X)sitions  of  the  films  made 
after  that  date.  Sdslcfmer  v. 
Sicgd-Cooper  Co.,  179  U.  S.  42; 
N.  K.  Fairbank  Co.  v.  Wind.wr, 
124  Fed.  Rep.  200;  Clinton  Me- 
tallic Paint  Co.  v.  A'.  Y.  Me- 
tallic Paint  Co.,  23  Misc.  GO,  73; 
Wulf  Bros.  Co.  V.  Hamilton  Shoe 
Co.,  240  U.S.2o  I. 

In  so  far  as  the  title  was  in- 
nocently used  without  knowledge 
of  plaintiff's  right  the  case  differs 
from  Selig  v.  Unicorn  Film  Corpn., 
1(>3  X.  Y.  Supp.  02.  There  the 
ap])ropriation  was  knowingly  and 
(leliluMatelv     made.       The     citse 


422 


THE    LAW   OF   MOTION    PICTURES 


In  the  case  of  Selig  Polyscope  et  al.  v.  Unicom  Film 
Service  Corporation  the  plaintiffs  were  the  owners  of  a 
dramatic  composition  as  well  as  a  motion  picture  re- 
production thereof  entitled  "The  Rosary."  Plaintiffs, 
Rowland  and  Clifford,  were  originally  the  owners  of  all 
rights  in  and  to  the  play.  The  Sehg  Polyscope  Co.  was 
the  assignee  of  the  motion  picture  rights  therein,  and  it 
produced  a  motion  picture  of  the  play,  using  the  same 
title  to  identify  its  motion  picture.  The  defendant  put 
out  upon  the  market  a  motion  picture  under  the  same 
title.  Here,  as  well,  the  court,  after  a  trial  upon  the 
merits,  granted  inj unction, ^^  although  a  temporary  in- 
junction had  been  refused.-- 


is  also  said  by  counsel  to  differ 
from  Dickey  v.  Mutual  Film 
Corpyi.,  160  N.  Y.  Supp.  609,  in 
the  fact  that  the  advertisements 
in  tliat  case  were  expressly  found 
to  convey  the  impression  that 
the  defendant's  picture  was  a 
reproduction  of  plaintiff's  play. 
The  findings  I  have  made,  re- 
lating to  the  defendant's  improper 
appropriation,  use  and  advertise- 
ment of  plaintiff's  title  will  be 
understood  to  relate  to  the  con- 
duct of  the  defendant  after 
notice  of  plaintiff's  rights. 

The  recjuosts  for  findings  have 
been  passed  upon.  Settle  a 
decision  on  noticf;  wliich  shall 
embody  all  findings  made  by  me 
and  which  shall  further  provide 
for  the  injunction  and  accounting 


proposed  by  plaintiff  except  that 
the  profits  and  damages  to  be 
accounted  for  and  assessed  shall 
be  limited  as  above  indicated 
and  that  tliis  relief  shall  be 
granted  only  against  the  defend- 
ant served,  and  which  shall  pro- 
vide for  final  judgment  on  the 
coming  in  and  contirmtition  of  the 
referee's  report ;  and  shall  further 
provide  that  all  questions  as  to 
costs  and  allowances  be  reserved 
until  final  judgment." 

*'  Sclig  Polyscoiic  Co.  v.  Uni- 
corn Film  Service  Corp.  (1917), 
163  N.  Y.  Supp.  62.  Opinion 
after  final  hearing.  "  The  plain- 
tiffs have  brought  this  action  for 
an  injunction  to  restrain  tlie  de- 
fendant's use  of  the  words  "The 
Rosary"  as  the  title  of  a  photo- 


USINO    RAMH    OI{    SIMILAR   TITLES 


423 


play  and  for  clarnaRes  f(;r  the 
alleged  unauthorized  use  of  that 
title.  There  eaii  he  no  doubt 
that  tiie  pliiintilTs  Rowland  and 
Clifford  first  adopted  this  title 
in  connection  with  a  dramatic 
composition.  Their  play  by  that 
name  which  was  copyrighted  in 
the  year  H)10  was  successfully 
producetl  in  the  following  year 
and  during  four  sea.sons  after- 
wards. In  June,  1915,  this 
play  under  the  same  title  wa.s 
produced  as  a  motion  picture 
by  the  plaintiff  Selig  Polyscope 
Company,  which  concern  had 
acquired  from  Rowland  and  Clif- 
ford the  right  so  to  reproduce 
the  original  play. 

It  appears  from  the  evidence 
that  this  representation  both 
on  the  stage  and  as  a  motion 
picture  had  met  with  marked 
acceptance  by  the  public  and 
that  the  good  will  acquired  by 
the  plaintiffs  in  the  production 
under  this  chosen  title  "The 
Rosary"  became  of  substantial 
value. 

While  the  title  of  a  copyrightetl 
play  is  not  protected  by  the  copy- 
right, the  use  of  that  title  is  none 
the  less  to  be  secured  to  the  owner 
of  the  copyrighted  matter  as  a 
trade  mark,  if  the  title  so  first 
employed  by  him  has  acquired 
a  trade  significance  as  an  arbi- 


trary' designation.  Oulcnidt  v. 
Lamar,  135  App.  Div.  100,  117; 
CasweU  v.  Hazard,  121  N.  Y.  484, 
494;  McLean  v.  Fleming,  96 
U.  S.  245,  254. 

As  wa.s  .said  in  the  ca.se  last 
cited:  "Phra.ses  or  even  words  in 
common  use  may  be  adopted 
for  the  purpose,  if,  at  the  time 
of  their  adoption,  they  were  not 
employed  by  another  to  designate 
the  same  or  similar  articles  of  pro- 
duction or  sale." 

Here  the  phrase  "The  Rosary," 
while  well  known  in  its  reference 
to  a  form  of  religious  observance, 
is  in  no  sense  descriptive  of  a 
drama,  as  such.  It  is  an  arbi- 
trary title  when  so  employed,  and, 
as  app>ears,  the  authors  and  pro- 
ducers of  the  plaintiffs'  play 
atiupted  this  title  to  identify 
rather  than  describe  the  comp<Jsi- 
tion  itself.  Indeed,  the  phrase 
is  not  aimed  to  be,  nor  is  it, 
serviceable  as  a  description  of 
the  subjects  portrayed  in  the 
play,  whether  as  acted  or  as 
exhibited  upon  the  screen. 

I  have  no  doubt  therefore  that 
this  plira.se  was  o{K'n  to  adoption 
by  the  plaintiffs  and  that,  having 
acquiretl  a  secondary  meaning 
in  identification  of  the  plain- 
tiffs' dramatic  composition,  it 
became  as.sociated  with  the  gocnl 
will   of   tli(!   business  establishai 


424 


THE   LAW  OF  MOTION   PICTURES 


in   the  production  of  the  play, 
and  was  a  trade  mark.  Outcault  v. 
Lamar,  135  App.  Div.  110;  Klaio 
&  Erlanger  v.  General  Film  Com- 
pany,  154  N.  Y.  Supp.  988.    As 
such,     its     character     continued 
when   applied    to    a    representa- 
tion in  the  form  of  a  motion  pic- 
ture.     Dickey   v.    Muhial    Film 
Corporation,  160  N.  Y.  Supp.  609. 
In    June,    1916,    the    defendant 
corporation,  which  was  engaged 
in  the  business  of  buying  motion 
picture  films  and  of  distributing 
them  for  exhibition  released  to 
its    customers    a    film    acquired 
by  it  and  renamed  "The  Rosary." 
It  appears  that  this  was  an  old 
film,    representing    a    dramatic 
portrayal,  and  had  been  exhibited 
under  some  other  name.     When 
choosing  the  title  "The  Rosary" 
and  advertising  the  motion  lec- 
ture under  it,  the  defendant  know 
of  the  plaintiffs'  widely  advertised 
and     successful     production;     its 
President,     Mr.     Sdilank,     was 
thoroughly     familiar     with     the 
play,  as  he  testifies,  and  I  am 
satisfied  from  the  evidence  that 
the  choice  of  this  title  for  an  old 
film  was  not  merely  accidental. 
British- American  Tobacco  Co.  v. 
Brit ish- American  Cigar  Store  Co., 
211   Fed.  H.  9:«,  935.     Jiistific:i- 
tioii  ff)r  thi.s  use  of  the  plaint ilTs' 
trade-mark   cannot  l)e  found   in 


the  fact  that  the  catalogues  in 
evidence  disclose  the  designation 
of  other  motion  picture  films 
by  the  use  of  the  word  "Rosary." 
So  far  as  these  catalogues  have 
any  value  as  proof,  they  indicate 
no  more  than  that  other  persons 
in  three  instances  have  so  named 
their  films  at  dates  long  after 
the  plaintiffs  Rowland  and  Clif- 
ford acquired  their  trade  mark 
by  original  adoption.  Whether 
the  films  referred  to  were  actually 
exhibited  under  conditions  which 
the  plaintiffs  might  or  might  not 
have  found  to  be  injurious  to 
their  rights,  is  a  matter  of  specu- 
lation, but  the  defendant's  case 
is  not  aided  by  pointing  to  a 
possible  invasion  of  these  rights 
by  others,  nor  is  it  of  importance 
that  a  well-known  song  and  novel 
had  been  i)ublished  under  the 
title  'The  Rosary'  before  the 
date  when  the  plaintiffs  Rowland 
and  Clifford  so  named  their 
play.  Tiiere  is  no  similarity 
of  enterprise  in  a  dramatic  com- 
position when  compared  with  a 
song  or  novel,  such  as  to  suggest 
or  to  present  conflicting  rights 
to  a  trade  mark.  Atlas  Co.  v. 
Street  &  Smith,  201  Fed.  Rep. 
398. 

"  There  should  be  judgment  for 
the  plaint ifis  for  an  injunction 
and  for  damages  to  be  ascertained 


USING    SAME    OR   SIMILAR   TITLES 


425 


on  a  rcfprcnro.  Proposed  de- 
cision and  judgment  as  liereto- 
fore  suhinittcd  by  plaintiffs 
sliould  he  noticed  for  settle- 
ment." 

See  also:  Poscn  v.  Schwarz 
(1917),  N.  Y.  Law  Journal,  Jan. 
8(1,  Hendrick,  J.:  "PlaintilT's  af- 
fidavit states  that  the  film  'The 
Battles  of  a  Nation'  was  copy- 
righted as  a  jihotoplay  in  the 
office  of  the  Hcgistcr  of  Copy- 
rights on  Oct.  8,  1915,  and  re- 
ceived entry  No.  L.  6579.  This 
copyright  included  the  photoplay 
itself,  the  title  thereof  and  the 
synopsis  thereof.  lie  also  states 
that  the  pictures  were  made  at 
large  expense  by  special  corre- 
spondents of  plniiitiff, '  who  visited 
the  scenes  of  battle  and  who  took 
the  pictures  especially  for  this 
film.'  It  is  also  stated  that  de- 
f(!ndant  is  using  jjlaintilT's  ad- 
vertising matter  in  a  manner  to 
convey  the  impression  that  he  is 
leasing  th(!  film  produced  by  plain- 
tiff. Defendant  admits  that  he 
is  renting  a  film  entitled  'The 
Battles  of  a  Nation'  and  claims 
that  said  title  is  a  conunon  one 
without  commercial  value;  that 
the  picture  consists  of  a  patch- 
work of  battle  scenes,  old  and 
new  and  that  he  'believes  that 
the  'Battles  of  a  Nation'  is  not  a 
copyright.       1    think    a    jjrupcr 


case  has  been  made  for  an  in- 
junction pendente  lite." 

"  Siiig  Polyscope  Co.  v.  Unicom 
Film  Service  Corp.  (1916),  N.  Y. 
Law  Journal,  Sept.  16,  Cohalan, 
J.:  "Plaintiffs  .seek  by  an  in- 
junction jx^ndente  lite  to  restrain 
the  defendant  from  using  as  the 
title  of  a  moving  picture  film  the 
term  'The  Rosary.'  It  is  a.s- 
serted  the  plaintiffs  Rowland  and 
Cliffcjrd  ac(iuired  the  sole  right 
to  use  this  title  on  March  22, 
1910,  when  a  play  called  'The 
Rosary'  was  produced.  The 
rights  of  this  dramatic  pro 
duction  were  secured  by  the 
Selig  Company  on  June  15,  1914, 
for  moving  picture  purpw-ses. 
The  i)laiiititTs'  photoplay  is  of 
seven  i)arts,  and  is  known  as  a 
long  j)hotoplay.  The  defendants 
are  presenting  also  a  two-part 
picture  play  calletl  'The  Rosary.' 
There  is  no  similarity  in  the  sub- 
ject matter  of  the  respective 
pnKJuctions.  The  themes  and 
the  im|X)rt  thereof  are  wholly 
dissimilar.  It  is  concedinl  that  if 
the  dcfeiulant  attemptoil  to  de- 
ceive the  public  and  to  represent 
its  photo  drama  as  the  photo 
drama  of  the  plaintifTs  that  an 
action  would  lie  and  an  injunc- 
tion would  be  the  pro|H'r  remedy. 
But  such  a  claim  is  not  l>orne  out 
by  the  moving  pajx^rs.    No  effort 


426 


THE    LAW   OF   MOTION   PICTURES 


The  New  York  Supreme  Court  in  another  case  involv- 
ing two  motion  pictures  entitled  respectively  "The 
Girl  Who  did  Not  Care"  and  ''The  Girl  Who  Doesn't 
Know"  held  that  there  was  no  conflict  between  such 
titles.2^ 


to  deceive  has  been  made  and  no 
means  calculated  to  perpetrate 
a  fraud  upon  the  public  have 
been  employed.  The  plaintiffs 
cannot  claim  that  the  term  'The 
Rosary'  is  a  fanciful  device  to 
which  they  are  absolutely  en- 
titled. They  neither  acquired 
proprietorship  therein  by  origin 
or  purchase.  The  words  are  de- 
scriptive and  they  have  been 
variously  and  commonly  used 
in  this  country,  and  in  fact  in 
every  Christian  country  for  years, 
and  undoubtedly  other  plays  so 
named,  particularly  of  a  religious 
nature,  have  been  and  are  now  be- 
ing produced.  I  am  satisfied  that 
not  only  has  there  been  no  at- 
tempt made  on  the  part  of  the  de- 
fendant to  imitate  the  i)l:iintirfs' 
drama  or  to  mislead  the  pul)lic, 
but  that  no  ownership  in  the  title 
can  be  predicated  herein.  Motion 
denied." 

2'i  li.  S.  Mosn  Motion  Picture 
Cory.  v.  Ivan  Film  Prod.  Inc. 
(1917),  X.  Y.  Law  Journal,  Jan. 
2;i,  Coliulaii  J.:  "Plaintiff  moves 
f(;r  an  injunction  pendente  hte.    It 


seeks  to  restrain  the  defendant 
from  using  in  the  production  of  a 
photoplay  the  name  "The  Girl 
Who  Did  Not  Care."  The  plain- 
tiff is  the  owner  of  a  photoplay 
which  is  entitled  "The  Girl 
Who  Doesn't  Know."  It  is 
claimed  that  the  name  of  the  de- 
fendant's play  conflicts  with  that 
of  the  plaintiff.  The  defendant 
asserts  that  the  name  of  its  play 
was  selected  by  the  deputy 
commissioner  of  licenses  out  of  a 
list  of  six  names  submitted  to 
him.  As  a  matter  of  unfair  com- 
petition, I  am  of  opinion  that 
the  papers  do  not  show  clearly 
the  plaintiff's  right  to  injunctive 
relief.  Moreover,  it  is  not  shown 
that  it  has  actually  sustained 
any  damage.  There  is  no  proof 
that  confusion  has  arisen  through 
the  respective  titles  of  the  play 
or  that  any  advantage  has  ac- 
crued to  the  defendant  or  any 
disadvantage  to  the  jilaintilf. 
The  titlcK  do  not  conflict  with 
each  other;  the  method  of  adver- 
tising the  (lef(!ndant's  play  is 
distinctive     from     that    of     the 


USING    SAME    OR    SIMILAR   TITLES 


42: 


The  most  recent  case  is  that  of  Manners  v.  Triangle 
wherein  the  Federal  court  enjoined  the  use  of  a  title  of  a 
dramatic  composition  in  connection  with  a  motion  pic- 
ture upon  the  theory  of  unfair  competition.-' 


pluiiitifT,  and  in  that  respect 
iippareiilly  no  attem|)t  Ikls  been 
nmde  to  deceive  the  public.  Tlie 
phiiiitilT  cannot  claim  that  the 
term  "The  Cirl  Who  Did  Not 
Care"  i.s  a  fanciful  device  to 
which  it  i.s  absolutely  entitled. 
The  word.s  are  descriptive,  and 
as  no  attempt  has  been  made 
on  the  part  of  the  defendant  to 
imitate  the  plaintilT'.s  drama  or  to 
mislead  the  public,  no  complete 
ownership  in  the  title  may  be 
predicated  herein.  Motion  de- 
nied." 

*<  Manners  v.  Triangle  (1917), 
U.  S.  District  Court,  Southern 
District  of  New  York,  X.  Y. 
Law  Journal,  June  21.  Man  ton, 
D.  J.:  "The  plaintiff  is  a  well 
known  playwright  and  seeks,  in 
this  action,  t(j  restrain,  by  in- 
junction, the  defendants  from  . 
using  the  title  "Happiness"  as 
the  title  of  a  play  or  photoplay. 
He  claims  that  in  violation  of  his 
Roleripht  in  tlie  title  "IIapi)iness" 
as  a  trade  name  or  trade  mark, 
the  defendants  should  not  only 
be  restrained  in  its  use,  but  .should 
compensate  him  for  the  damages 


he  has  sustained.  The  action 
has  l)een  remove<J  from  the  state 
court. 

The  defendants  move  to  dis- 
mi.ss  the  complaint  on  the  ground 
that  it  does  not  state  facts  war- 
ranting equitable  relief. 

Much  is  claimed  l)y  plaintiff 
as  to  delays  on  the  part  of  the  de- 
fendants in  defending  the  action 
and,  it  is  argued,  that  this  prac- 
tice is  indulged  in  so  as  to  avoid 
a  trial  of  the  action  l)efore  the 
summer  recess  of  this  court,  to 
the  advantage  of  the  defendants, 
in  that  the  defendants  may  profit 
by  the  use  of  the  title  "Ha|)- 
piness"  in  the  interim.  It  is 
claimed  that  the  life  of  a  motion 
picture  of  the  type  produced 
by  the  defendants  is  but  a  few 
months,  and  that  since  this  cause 
cannot  be  tried  until  the  October 
session  of  the  court,  unless  an 
injunction  \ie  granted  now, '  an 
injunction  resulting  from  the 
trial  of  the  action  would  be  of 
little  avail. 

The  plaintiff  is  the  author  of 
"Peg  o'  My  Heart."  "The  Harp 
of  Life"  and  "Out  There."    His 


428 


THE    LAW   OF   MOTION   PICTURES 


In  the  case  of  Selig  Polyscope  Co.  v.  Mutual  Film  Cor- 
poration, the  plaintiff  exhibited  a  motion  picture  entitled 

Mr.  Rothapfel,  manager  of  the 
defendant  theatre  company,  and 
protested  against  the  use  of  this 
title. 

Dodd,  Mead  &  Co.  are  the 
plaintiff's  publishers  and  have 
acquired  from  the  plaintiff  sole 
right  to  publish,  plaintiff  reserv- 
ing the  dramatic  rights  and  the 
rights  of  presentation  upon  the 
stage  in  any  and  every  form. 

The  defense  interposed  is  that 
on  November  12,  1910,  a  lady 
named  Spiegelberg  gave  a  per- 
formance of  a  tragedy  in  one  act 
entitled  "Happiness,"  and  this 
was  performed  in  her  country 
residence  in  Westchester  County, 
New  York,  and  for  which  a 
charge  of  $5  was  made  for  the 
l)enefit  of  a  liospital.  And  further 
the  presentation  of  a  play  called 
"Happiness"  by  the  Chautauqua 
Association.  However,  tliis  hitter 
play  was  produced  in  1016, 
two  years  after  tlie  production 
by  the  plaintiff  of  his  i)lay  and 
after  his  play  had  been  copy- 
riglilod.  Upon  notice  and  j^-o- 
test  by  the  plaintiff  the  ('hau- 
tauqua  Association  changed  the 
title  of  the  play  to  "Tiie  (^uest 
for  Happiness."  The  defendants 
having    received    not,i(^e    of    the 


wife,  under  the  stage  name  of 
"Miss  Laurette  Tajdor,"  is  well 
known  to  the  theatre-going  pubhc 
and  has  had  a  successful  career. 
The  play  "Happiness,"  written 
by  the  plaintiff,  has  been  copy- 
righted. In  March,  1914,  it 
was  presented  at  the  Cort  The- 
atre in  New  York  City,  and  after 
some  performances  taken  off. 
The  moving  aflfidavits  indicate 
that  the  play  is  to  be  used  in  the 
future  under  this  title. 

The  plaintiff's  attention  was 
called,  in  April  last,  to  the  an- 
nouncement of  the  production 
of  the  photoplay  at  the  Rialto 
Theatre  in  this  city,  under  the 
title  "Happiness."  Notice  was 
served  upon  the  theatre  and  the 
producers  of  the  play,  defendants 
herein,  of  the  claim  of  ownership 
by  the  plaintiff  of  the  title  "Hap- 
piness" as  the  title  of  a  play. 
After  notice,  defendants  refused 
to  discontinue  the  use  of  the  title 
"Happiness"  and  advertised  it 
extensively  in  the  j)ress  and  other- 
wise under  this  title  and  continued 
performing  in  motion  pictures 
under  said  title  in  various  cities 
mentioned  in  the  affidavits.  In 
addition  to  this,  the  plaintiff  per- 
sonally   visited    and    called    upon 


USING    SAME    OK    SIMILAR    TITLES 


429 


"The  House  of  a  Tliousiiiid  Caiidlos."     A  iiujiilh  after 
the  release  of  the  plaintiff's  picture  the  defendants  offered 

chiiin  of  the  plaiiitilT  proceeded 
to  produce  their  photojjhiy  under 
this  title,  and  the  capital  wus  thus 
invested  after  due  and  timely 
notice,  and  can  only  be  based 
upon  insistence  that  they  were 
right  in  the  position  which  tliey 
took.  Therefore  it  will  not  be 
unfair  to  grant  this  injunction 
as  against  the  defendants  unless 
the- strict  rule  of  law  forbids  the 
granting  of  such  relief.  And  in 
addition  thereto  it  is  claimed, 
and  properly  so,  by  the  plaintiff 
that  the  matter  of  change  of 
title  by  the  defendants  is  a  simple 
one  if  the  photoplay  is  permitted 
to  continue.  What  is  now  prob- 
ably a  five  and  ten  cent  moving 
picture  jjorformance  will  undoubt- 
edly take  fnjm  a  valuable  as.set 
the  trade  name  of  this  play, 
which  will  be  produced  under 
expensive  auspices  to  a  theatre- 
going  pul)lic. 

If  the  title  "Happiness"  is 
infringed,  it  can  be  protected 
on  the  doctrine  of  unfair  com- 
petition. Corhctt  V.  I'urdy,  SO 
Fed.  901;  Glcuser  v.  St.  Elmo  Co., 
175  Fed.  276. 

The  courts  have  exercised  their 
equitable  jurisdiction  and  en- 
joined defendants  from  using  as 


the  title  of  j)hotoplay  the  plain- 
tiff's title,  such  {US  "A  Fool  There 
Was,"  when;  the  plaintiff  had 
been  using  it  as  the  title  of  a 
drama.  Kluw  &  Erlangcr  v. 
General  Film  Co.,  156  X.  Y.  Supp. 
1128.  Valuable  titles  which  have 
been  u.sed  as  trade  names  have 
been  protected  in  the  following 
cases:  Schook  v.  Woods,  32  Leg. 
Int.  264;  Oulcaidl  v.  Lamar, 
135  App.  Div.  110;  Fruhman  v. 
Morris,  68  Mi.sc.  641;  Frohmnn  v. 
Fay  ton,  34  Misc.  275.  A  fanciful 
title  such  a-s  "The  Come  Back" 
was  protected  by  Judge  Clark 
in  the  state  court,  160  X.  Y. 
Supp.  609. 

In  Aaronson  v.  Fleckenstein,  28 
Fed.  75,  the  rule  w:is  laid  down 
that  the  name  given  a  comjwsition 
by  its  author,  by  which  it  has 
become  known  to  the  public, 
is  a  property  right  which  should 
be  i)rotected,  and  that  it  is  a 
fraud  uiM)n  the  public  and  the 
complainant  to  i)ermit  its 
use. 

The  use  of  the  title  "Happi- 
ness" in  a  prominent  theatre  in 
Xew  York  City,  staged  for  jxt- 
formance  by  one  of  the  foremost 
actresses  of  her  time,  has  given 
to  such  title  a  value  and  asset 


430 


THE    LAW   OF   MOTION   PICTUEES 


for  exhibition  a  motion  picture  entitled  "Tlie  House  of  a 
Thousand    Scandals."      x\t  the  commencement    of    the 


as  to  constitute  a  property  right 
in  this  plaintiff  which  should  be 
protected.  While  it  is  true  that 
the  title  of  a  copyrighted  play 
is  not  protected  by  the  copy- 
right, the  use  of  that  title  is  none 
the  less  to  be  secured  to  the  owner 
of  the  copyrighted  matter  as  a 
trade  mark  if  the  title  so  first 
employed  by  him  has  acquired 
a  trade  significance  as  an  arbi- 
trary designation.  If  the  word 
"Happiness,"  even  though  a 
word  in  common  use,  was  adopted 
by  the  i)laintiff  and  at  the  time 
of  its  adoption  was  not  employed 
by  another  as  the  designation  of 
the  title  of  a  play,  it  maj''  become 
a  trade  name  or  trade  mark. 
The  title  may  in  no  sense  be 
descriptive  of  the  drama  as  such, 
and  indeed,  it  may  be  an  arbitrary 
title  employed  to  identify  rather 
than  describe  the  composition 
itself.  If  the  title  is  serviceable 
a.s  a  description  of  the  subject 
portrayed  in  the  play,  it  was  open 
to  adoption  by  the  plaintiff,  and 
if  such  use  gave  it  a  secondary 
nicaiiiiig  in  identification  of  the 
l)laiiitiff's  (lnuii:iti(;  composition, 
it  became  so  associated  with 
the  gofxi  will  of  the  drama  as  to 
be    establislnul     in     the    produc- 


tion of  the  play  and  was  a  trade 
mark. 

I  think  the  circumstances  and 
use  of  the  title  by  the  plaintiff 
herein  justify  the  conclusion  that 
the  plaintiff  had  secured  a  trade 
mark  or  trade  name  in  said 
title.  After  full  notice,  the  de- 
fendants having  chosen  the  title 
and  advertised  it  in  a  photoplay, 
did  so  at  their  peril.  Justifica- 
tion for  this  use  cannot  be  found 
in  the  isolated  case  of  the  pro- 
duction of  a  play  of  a  similar 
title  at  Mrs.  Spiegelberg's  home. 

The  right  to  a  title  vests  in  the 
first  to  apply  and  use  the  title. 
McLean  v.  Fleming,  96  U.  S.  245. 
In  G.  &  C.  Merriam  Co.  v.  Saal- 
field,  198  Fed.  369,  it  was  said: 
"A  trade  mark  is  a  trade  mark 
because  it  is  indicative  of  the 
origin  of  the  goods.  The  original 
right  to  its  exclusive  use  was  not 
based  upon  any  statute,  but 
upon  the  princii)lcs  of  equity 
and  the  right  is  acquired  not  by 
discovery  or  invention  or  regis- 
tration but  by  adoption  and  use." 

In  Drone  on  Copyrights  (p. 
U'M'))  it  is  said:  "Then^  can  be  no 
copyright  in  a  title;  but  on  gen- 
eral princijiles  of  e(|nily  an  in- 
junction will  l)e  granted  restrain- 


USING   SAME    OR   SIMILAR  TITLES 


431 


ing  a  person  from  appropriating 
the  title  of  a  well  known  publica- 
tion for  a  rival  work,  nor  will  a 
person  be  allowed  to  use  a  title 
which  is  a  mere  colorable  imita- 
tion of  another  for  the  purpose 
of  misleading  the  public  into  buy- 
ing one  publication  in  the  belief 
that  it  is  the  other." 

I  think  the  use  of  the  title  for 
a  motion  picture  play  as  used  by 
the  defendants  is  an  infringement 
of  the  plaintiff's  sole  right  to  the 
title  as  the  title  of  a  play  in  drama 
on  the  stage,  and  that  the  in- 
junction should  be  granted. 
Kalem  v.  //«r/>er,  222  U.  S.  61." 

On  appeal,  reversed  upon  the 
ground  that  no  actual  prior  user 
was  shown,  but  the  rule  involved 
was  expressly  recognized — C.  C. 
A.,  2d  Circuit,  November  13, 
1917.     Ward.  J. 

See  also:  lliodor  Picture  Corp. 
V.  Michaihff  d  al.  (1017),  X.  Y. 
Law  Journal,  October  G.  Hough, 
C.  J. :  "This  action  is  sustainable 
only  as  a  copyright  bill,  a  finding 
based  on  the  citizenship  and  resi- 
dence of  the  necessary  ])arties. 

"A  threatened  infringement  of 
copyright  is  enough  to  sustain  a 
bill. 

"  I  assume  that  defendant  Ex- 
port &  Import  Film  Co.'s  photf>- 
play  deals  with  entirely  dilTer- 
ent  scenes,  times  and  surround- 


ings from  those  employed  by 
plaintiff.  Ivan  the  Terrible  was 
n(jt  a  Romanoff,  and  the  sixteenth 
was  different  from  the  twentieth 
century,  even  in  Ru.ssia.  This 
is  common  knowledge. 

"  But  when  a  copyrighted  play 
is  registered  as  Tlie  Fall  of  the 
Romanoffs,  and  lliodor  Is  a 
prominent  character  therein,  de- 
fendants' acts  in  advertising  The 
Tyranny  of  the  Romanoffs  with 
lliodor  arc  nonscn.sc,  unless  in- 
tended to  create  the  belief  that 
the  play  so  named  did  or  does  deal 
with  the  same  matters  naturally 
suggested  by  The  Fall  of  the 
Romanoffs  with  lliodor  as  an 
actor. 

"  Where  the  title  of  a  play  is 
descriptive  it  may  be  part  of  the 
right  or  property  covered  by  the 
copyriglit.  The  dividing  line 
Ijctween  copyright  or  trade-mark 
infringement  and  unfair  compe- 
tition is  not  easy  to  draw  in  many 
cases. 

"  Here  there  is  plainly  such 
unfairness,  but  there  is  a  threat 
of  infringement  also  by  the  up- 
jjfopriation  of  name  and  actual 
infringement  in  the  simulation 
of  Iliodor's  costume  in  adver- 
tising matter. 

Injunction  jKMidente  lite  will 
contiinie  against  Blumenthal,  The 
Export  &  Import  Film  Company, 


432 


THE    LAW   OF  MOTION   PICTURES 


action  an  application  was  made  by  the  plaintiff  for  an 
injunction  pendente  lite,  which  was  granted.^^  After  a 
trial  upon  the  merits,  judgment  was  found  for  the  de- 
fendant and  the  complaint  dismissed,  the  court  holding 
that  there  was  no  such  similarity  between  the  titles  as 
would  mislead  or  deceive  the  pubhc.-*^ 


Inc.,  and  Chadwick,  preventing 
their  use  of  the  title  'The  Tyr- 
anny of  the  Romanoffs  with 
lUodor,'  and  from  using,  showing 
&c.,  any  photograph  of  IHodor 
in  a  costume  shown  on  that 
person  in  plaintifT's  copyrighted 
photoplay. 

"  I  am  satisfied  that  defendants 
have  pirated  one  of  plaintiff's 
copyrighted  photographs  of  Ili- 
odor,  hence  this  last  direc- 
tion. 

"  To  avoid  (if  possible)  further 
motions  it  may  be  said  that  I 
should  not  consider  'The  Tyr- 
anny of  the  Romanoffs'  a  copy- 
ing or  infringement  of  'The 
Fall  of  the  Romanoffs.'  It  is 
the  phrase  'with  Iliodor'  which 
under  the  circumstances  consti- 
tutes the  actifjnable  threat  of  in- 
fring(!ment,  a  threat  not  the  less 
actionable  because  a  story  con- 
cerning Ivan  the  Terrible  would 
not  and  could  not  make  the  threat 
good. 

"This  of  course  is  cnlircly  apart, 
from    tlie    above    incut ioncd    ap- 


propriation of  Iliodor's  photo- 
graph. 

"  Plaintiff  will  give  security  in 
$5,000.  Settle  order  on  notice. 
The  stay  order  as  against  all 
defendants  not  above  named  will 
be  vacated." 

25  Selig  Polyscope  Co.  v.  Mutual 
Film  Corp.  (1915),  N.  Y.  Law 
Journal,  September  28. 

-'^  Selig  Polyscope  Co.  v.  Mu- 
tual Film  Corp.  (1917),  N.  Y. 
Law  Journal,  February  1.  Opin- 
ion after  final  hearing.  Pen- 
dleton, J.:  "This  is  an  action 
brought  to  enjoin  defendants 
from  using  as  the  name  or  title 
of  a  photoplay  "The  House  of 
a  Thousand  Scandals."  Plain- 
tiff, under  permission  from  the 
author  or  his  assigns  of  a  novel 
entitled  "The  House  of  a  Thou- 
sand Candles,"  produced  or  made 
a  film  for  a  picture  play  following 
tlie  story  and  incidents  .set  forth 
in  the  novel  and  about  August, 
1915,  conHucMiced  ex]iil)itinR  such 
moving  picliirc  i)Iay  under  tlie 
name  of  "The  House  of  a  Thou- 


USING    SAM?:    OK    SI.MILAlt    rn'LES 


433 


The  (lUC'stiou  "in  the  lust 
complicated  by  the  fact  that 

wind  Candles."  Defendants  or 
tlieir  predecessors  in  interest 
made  a  film  for  a  picture  i)lay 
witli  the  title  or  name  of  "The 
House  of  a  Thousand  Scandals," 
the  story  or  plot  of  which  is  not 
taken  from  or  based  on  the  story 
of  the  novel,  and  proposes  to 
exhibit  the  same  under  the  above 
name.  Both  parties  have  ex- 
jMMuled  C(jnsiderable  sums  of 
money  and  extensively  adver- 
tised their  productions  under 
the  respective  names  aforesaid. 
The  action  is  in  equity  to  restrain 
and  prevent  unfair  competition. 
Although  there  is  evidence  as  to 
copyrights  secured,  the  cause  of 
action  docs  not  arise  thereunder 
and  such  facts  are  only  material 
as  showing  the  history  of  the 
case.  The  gist  of  the  action  is 
that  the  public  is  liable  to  be 
misled  or  deceived.  Ikill  v. 
Broadway  linznar,  104  X.  Y.  435; 
Klaw  v.  General  Film  Co.,  154 
N.  Y.  S.  988.  The  plays  them- 
selves are  entirely  di.ssimilar. 
The  words  and  language  of  the 
resjx'ctive  titles  are  to  some  ex- 
tent descriptive  of  the  two  plays 
and  the  differences  in  tiie  plots. 
Plaintiff  advertises  its  j)lay  as 
taken  from  the  novel.     There  is 


inciitioiK'd  case  was  further 
the  i)laiiitifi"  based  his  action 

nothing,  either  in  word  or  simi- 
larity of  design  in  defendants'  ad- 
vertisements of  its  play  outside 
of  and  apart  fnjin  the  alleged 
similarity  in  the  name  or  title, 
tending  to  show  or  suggest  that 
defendants'  jjlay  was  taken  from 
the  novel  or  is  in  any  way  similar 
to  plaintiff's  play,  and  there  is 
no  evidence  that  any  one  has  been 
misled  or  any  confusi(jn  occa- 
sioned between  the  two  produc- 
tions. In  fact  there  is  some  evi- 
dence that  there  has  been  no 
such  confusion  and  that  the  two 
plays  have  been  exhibited  in  the 
same  theatres  at  different  times, 
a  circumstance  going  to  show  that 
they  have  been  regarded  and 
treated  as  distinct  and  different 
exhibitions.  Even  if  it  be  tis- 
Kumed  that  the  title  "The  House 
of  a  Thousand  Candles"  Ls  not 
ilescriptive,  but  an  arbitrary  or 
fanciful  title,  the  use  of  which 
as  a  trade  name  will  be  protectctl, 
where  the  unfair  competition  is 
based  on  alleged  similarity  the 
resemblance  must  be  such  as  to 
deceive  a  person  making  natural 
and  ordinary  use  of  his  senses. 
Munro  v.  Tousey,  129  X.  Y.  38. 
While  there  is  some  similarity 
here  as  idem  sonans,  the  words 


434 


THE    L.\W   OF   MOTION    PICTURES 


upon  its  rights  in  the  famous  novel  by  Meredith  Nichol- 
son as  well  as  upon  the  rights  accruing  to  it  because  of 
the  production  and  exhibition  by  it  of  a  motion  picture 
under  such  title. 

This  brings  us  to  the  question  whether  the  owner  of  a 
novel  who  has  not  as  yet  made  a  motion  picture  repro- 
duction of  the  same  may  enjoin  a  motion  picture  pro- 
duced under  the  same  title  as  that  of  his  novel. 

Offhand,  they  do  not  seem  to  be  in  the  same  class  of 
goods,  and  hence  not  in  competition  with  one  another. 
In  Atlas  V.  Street  &  Smith, -~  the  leading  case  in  this  coun- 
try in  w^hich  the  question  was  touched,  this  position  was 
taken  by  the  court. 

A  great  deal,  however,  may  be  said  in  favor  of  those 
who  take  the  position  that  there  is  direct  competition 
between  the  two.  Under  the  copjTight  law  the  copyright 
owner  of  the  novel  has  the  sole  and  exclusive  right  to 
make  a  dramatization  of  his  novel.  A  dramatization 
having  been  held  to  include  a  motion  picture  reproduc- 
tion of  a  work,  it  is  argued  that  a  stranger  who  puts  out  a 
motion  picture  with  the  same  title  anticipates  a  right 
which  the  novelist  is  given  under  the  copyright;  and 


"Candles"  and  "Scandals"  havo 
respectively  well  defined  meanings 
and  represent  entirely  different 
conceptions.  As  defendants'  title 
is  not  in  terms  misleading  anil 
there  is  no  evideiu*  that  any 
one  has  been  misled  or  that  any 
confusion  has  been  created,  it 
can  not  be  .said  that  it  is  calcu- 
lated to  deceive  or  that  decep- 


tion or  confusion  is  probable, 
and  as  defendants  have  not  been 
shown  to  have  done  any  other 
acts  tending  or  liable  to  deceive 
or  mislead  a  case  for  an  injunc- 
tion has  not  been  made  out. 
Judgment    for    defendants.  " 

"  Atlas  V.  Street  &  Smith  (1913), 
204  Fed.  (C.  C.  A.)  398. 


USlNLi    S.UIE    OIC    ai.MlLAlt    TITLES  435 

whon  the  novelist  attempts  to  avail  himself  of  his  right 
to  reproduce  his  work  in  motion  pictures  under  his  copy- 
right, he  finds  that  he  cannot  use  the  very  title  which  he 
has  conceived.  Should  he  use  the  same  title  he  would  be 
unfairly  competing  with  the  stranger,  who,  by  prior  user, 
had  ac(iuired  a  superior  right  to  the  title  with  respect  to 
a  motion  pictm-e.  In  other  words,  a  potentiality  of  his 
novel  is  the  develo])ment  of  the  same  in  the  form  of  a 
motion  i^icturc,  and  the  production  of  a  motion  picture 
under  the  same  title  by  a  stranger  cuts  off  that  potential 
development  of  his  work. 

His  predicament  is  extreme,  for  should  he  exercise 
his  pri\ilege  under  his  copjTight  and  make  a  motion  pic- 
ture reproduction  of  his  novel  under  another  title,  a.s 
he  would  be  compelled  to  do,  he  would  at  once  lose  all 
rights  conferred  upon  liim  by  his  copyright  of  the  novel, 
under  the  rule  that  the  exploitation  of  the  copjTighted 
work  under  a  title  different  from  that  applied  to  it 
when  securing  copyright,  amounts  to  a  dedication  of  the 
work.-^ 

In  other  words,  liis  cojDyright  gives  the  novelist  certain 
specified  rights.  In  attempting  to  exercise  those  rights 
he  is  prevented  from  so  doing  by  the  laws  of  unfair  com- 
petiti(jn.  To  escape  the  conse(iuences  of  unfair  competi- 
tion, he  must  change  the  title  of  the  motion  picture  re- 
production of  his  novel;  and  the  moment  he  does  that, 
he  loses  his  coi)yright  entirely.  He  is  placed  in  the  posi- 
tion where  he  must  not  exercise  the  motion  jiicture  rights 
derived  from  his  cop>Tight  under  penalty  either  of  losing 

^^  Collier  V.  Imp.  Films  Co.  (1913),  214  Fed.  (D.  C.)  272;  See 
also  Section  142. 


436  THE    LAW   OF   MOTION    PICTURES 

his  entire  copyright  or  of  competing  unfau'ly  with  his 
neighbor. 

To  realize  the  practical  effect  of  this  rule,  we  may  take 
the  case  of  a  famous  novel  which  has  enjoyed  a  circulation 
of  half  a  million.  A  stranger  comes  along,  while  the  fame 
of  the  novel  is  at  its  height,  and  puts  out  a  picture  en- 
tirely unrelated  to  the  novel  in  story,  plot,  theme,  charac- 
terization or  situation — but  with  the  identical  title.  If 
it  is  the  law  that  there  is  no  competition  between  them, 
the  novelist  is  barred  from  producing  a  motion  picture 
of  his  novel  under  any  title,  and  the  motion  picture  pro- 
ducer may  with  impunity  palm  off  his  mediocre  work  as 
the  product  of  the  novelist,  and  thereby  reap  the  benefit 
of  the  latter's  genius. 

On  the  other  hand,  it  may  be  said  that  the  whole  theory 
of  unfair  competition  is  founded  on  the  protection  of 
the  trader  in  the  conduct  of  his  business.  Would  the  pro- 
duction of  a  picture  bearing  the  same  title  as  a  novel, 
decrease  the  sales  of  such  novel?  Would  there  in  any 
event  be  actual  competition?  Would  the  picture  in- 
fluence the  public  not  to  purchase  the  novel?  It  may 
also  be  asked  whether  a  novel  published  under  the  same 
title  as  that  of  a  prior  motion  picture  would  result  in  a 
decreased  attendance  at  the  exhibition  of  the  picture. 
The  argument  advanced  is  that  the  effect  of  one  upon 
the  other  is  too  pr()l)Iomatical  and  r(>inote  to  permit  the 
aggrieved  i)arty  to  invoke  the  law  of  unfair  competition 
for  his  protection. 

It  has  generally  been  assumed  that  Atlas  v.  Street  & 
Smith  has  settled  the  law  in  this  country  to  the  effect 
that  there  is  no  coini)etition  between  a  novel  and  a  motion 


USING    SA.MK    OR   SIMILAR   TITLES 


437 


picture.  Wliilc  in  tho  |)n>vailinp;  ojjinion  that  statement 
is  made,  it  is  j)ure  ol)iter  dictum.  'I'hc  (juostion  invohcd 
in  that  case  was  not  between  a  novel  and  a  picture,  hut 
between  a  series  of  publications  and  a  jiicture.  There  a 
series  of  works,  each  under  a  different  title,  had  been 
jHiblished  from  time  to  time,  the  entire  series  being  known 
under  the  name  "Nick  Carter."  The  court  was  right  in 
its  conclusion,  for  the  exhibition  of  a  j)icture  under  the 
same  title  could  not  very  well  affect  the  trade  in  the  .series; 
the  situation  is  analogous  to  that  of  a  motion  picture 
published  under  the  same  title  as  that  of  a  periodical. 
How  can  it  be  said  that  a  person  contemplating  attend- 
ance at  the  exhibition  of  a  motion  i)icture  may  be  under 
the  impression  that  he  will  see  reproduced  a  periodical ! 

The  question  has  not  yet  come  squarely  before  the 
courts.-^ 


29  See:  Harper  v.  Ranmifi  (1895) , 
G7  Fed.  (C.  C.)  904.  This  ca.sc 
was  l)r()Uf?lit  under  tho  ("ojn'right 
Act  for  an  intrinffcincnt.  The 
defendant  pcrrdrnicd  a  (h'amatic 
composition  hcarinfr  tlie  same 
title  as  the  jjhiintilT's  novel.  The 
plot,  scenes  and  dialogue  of  the 
novel,  not  having  been  imitjited 
or  adapted,  the  court  held  that 
an  action  did  not  lie,  as  the  cojiv- 
right  law  did  not  ])rotect  a  title 
alone,  but  only  in  .so  far  as  it  wa.s 
a  jiart  of  the  copyrighted  work. 

This  case  has  sometimes  been 
cited  in  supjiort  of  the  proi^)si- 
tion  that  there  is  no  unfair  com- 


petition between  a  novel  and  a 
dramatic  composition  but  it  will 
be  noted  that  unfair  competition 
was  not  at  all  involved  in  the 
case. 

See:  .Utor  v.  W.  82nd  St.  Realty 
Co.  (1915),  167  A.  D.  (X.  Y.) 
273;  1.32  X.  Y.  Supp.  6.J1.  An 
hot(>l  and  an  apartment  hotel 
bore  the  same  title,  "Apthorp." 

Held,  tiiat  since  one  desiring 
rooms  by  the  day  or  longer  in  a 
hotel  would  not  be  apt  t<i  leiuse 
an  apartment  in  an  apartment 
hotel,  there  wa.s  no  direct  com- 
|x'tition  between  them,  and  no 
injunction  wuulil  lie. 


438 


THE    LAW   OF   MOTION    PICTURES 


Section  122. — Use  of  title  after  copyright  in  work  expires. 

After  the  hterary  work  falls  into  the  pubUc  domain, 
the  title  of  such  work  becomes  public  property  as  well. 
It  has  been  noted  before  that  a  title  is  protected  only  in 
conjunction  with  a  work  vidth  which  it  has  become  asso- 
ciated. ^°  Hence,  if  the  work  becomes  pubUc  property, 
the  title  also  becomes  public  property.  Anyone  may 
thereafter  appropriate  the  title  for  use  in  connection  with 
any  hterary  work.''^  The  courts  will  not  perpetuate  the 
rights  in  a  literary  work  under  the  copyright  law  upon 
any  theory  of  unfair  competition. ^- 


See  also:  Simplex  Aidomohile  v. 
Kahnweiler  (1914),  162  A.  D. 
(N.  Y.)  480;  147  N.  Y.  Supp. 
617.  Plaintiff  affixed  the  title 
"Simplex"  to  an  automobile. 
Defendant  affixed  the  same  title 
to  a  fire  extinguisher.  Held, 
that  there  could  be  no  recovery. 

A  discussion  of  the  law  of 
unfair  competition  including  trade 
names  and  trade  marks  is  con- 
tained in  20  C.  C.  A.  at  page 
165.  See  also:  30  ('.  C.  A.  376; 
50  C.  C.  A.  323. 

Where  the  title  of  a  play  iras 
used  as  the  title  of  n  ynusicnl  com- 
position and  the  c(miposiii<m  i/r/.s 
published  in  such  a  manner  as  to 
lecul  the  public  to  helicre  that  the 
musical  composition  was  a  part  of 
the  piny,  wlnm  not  so  in  fact,  held 
that  tlie  owners  of  the  play  were 


entitled  to  an  injunction  and  dam- 
ages. See:  Elkin  &  Co.  V.  Francis 
Day  &  Hunter  (Eng.)  (1910), 
Times,  Oct.  27. 

^^  Black  V.  Ehrich  (1891),  44 
Fed.  (C.  C.)  793;  Aronson  v. 
Fleckenstein  (1886),  28  Fed.  (C. 
C.)  75. 

"  Merriam  Co.  v.  Strauss 
(1904),  130  Fed.  (('.  C.)  477; 
Merriam  Co.  v.  Holloway  Pub. 
Co.  (1890),  43  Fed.  (C.  C.)  450; 
Merriam  Co.  v.  Te.v(is  SIf tings  Co. 
(1892),  49  Fed.  (C.  C.)  944; 
Merriam' Co.  v.  Fajnous  S.  &  C. 
Co.  (1891),  47  Fed.  (C.  C.)  411; 
Merriam  v.  Saiilfield  (1912),  198 
Fed.  (('.('.  A.)  369. 

•"  Ogilvic  V.  Merriam  Co.  (1907), 
149  Fed.  (C\  C.)  858;  G.  &  C. 
Merriam  v.  Ogilrie  (1908),  159 
Fed.  (C.  C.  A.)  G38. 


USING    SAMi;    OH    SIMILAR   TITIJIS 


439 


This  rule,  however,  is  limited  to  the  extent  that  the 
title  must  not  be  used  in  such  a  manner  as  to  lead  the 
public  to  ])elieve  that  the  later  work  to  which  the  title  is 
applied  is  the  identical  literary  production  of  the  former 
work.  The  courts  have  always  recjuired  the  subsequent 
user  of  such  title  to  affix  thereto  some  phrase  or  expres- 
sion which  will  distinguish  to  the  pubhc  the  old  and  the 
new  work.^^ 


^^  Atlas  Mfg.  Co.  v.  Street  & 
Smith  (1913),  204  Fod.  (C.  C.  A.) 
398.  Van  Valkonhurgh,  J.:  "So 
the  copjTiglit  of  a  book  does 
not  prevent  others  from  taking 
the  same  title  for  another  book, 
though  the  copyriglit  has  not 
expired;  and  on  the  expiration  of 
the  copyright  of  a  novel  any 
person  may  use  tlie  plot  for  a 
play,  copy  or  publish  it  or  make 
any  other  use  of  it  as  he  may  see 
fit.  .  .  .  The  right  to  u.se  a 
copyrighted  name  upon  the  ex- 
piration of  the  copvright  becomes 
public  proixTty,  subject  to  the 
limitation  that  the  right  be  so 
exercised  as  not  to  deceive  mem- 
bers of  the  public  or  lead  them 
to  believe  that  they  are  buy- 
ing the  particular  thing  whicli 
was  produced  under  the  copy- 
right." 

aiaser  v.  St.  Elmo  (1909), 
175  Fed.  (C\  C.)  27().  "Th<>  rule 
is  well  settled  that,  on  the  expira- 


tion of  a  patent  for  an  article 
which  has  become  identified  by 
some  particular  name,  as  the 
name  of  the  inventor,  although  it 
is  open  to  the  public  to  manu- 
facture the  patented  article  and 
to  call  it  by  the  name  by  which 
it  is  commonly  known,  it  is  un- 
fair competition  to  do  so  unless 
the  person  making  the  article 
affixes  to  it  a  plain  notice  that  it 
is  not  made  by  the  owner  of  the 
original  patent,  but  by  some  one 
else.  Singer  Mfg.  Co.  v.  June 
Mfg.  To.,  163  U.  S.  1G9;  16  Sup. 
Ct.  1002;  Merriam  v.  Famou.^ 
Shoe  etc.  Co.,  47  Fed.  (C.  C.)  411. 
The  same  rule  has  be<'n  applied 
to  cop>Tights.  Merriam  Co.  v. 
Ogilric,  159  Fetl.  (C.  C\  A.) 
638." 

Estes  v.  Williams  (1884),  21 
Fed.  (C.  C.)  189;  Estes  v.  Leslie 
(mS6),  27  Fed.  (C.  C.)  22;  Estes 
V.  Worthington  (1S87),  21  Fed. 
(C.  C.)  154. 


440  THE    LAW   OF   MOTION    PICTURES 

Section  123. — Infringement  of  titles — Titles  held  to  in- 
fringe. 

Defendants,  who  had  obtained  the  services  of  one 
Heney  to  revise  an  old  work,  and  had  entitled  it,  Heney's 
New  and  Revised  Edition  of  Jousse^s  Royal  Standard  Piano- 
forte Tutor  and  had  printed  the  word  ''Heney"  in  large 
letters,  both  on  the  title  page  and  cover,  were  held  to 
infringe  the  plaintiff's  work  Heney' s  Royal  Modern  Tutor 
for  the  Pianoforte.^* 

So,  too,  were  the  titles  Canadian  Bookseller  and  Literary 
Journal  and  Canada  Bookseller  and  Stationer  held  to  in- 
fringe. ^^ 

The  plaintiffs  and  one  Beatty  had  carried  on  the  busi- 
ness of  pubUshing  and  selling  copybooks  under  the  title 
of  Beatty' s  Head  Line  Copy-Book.  Subsequently  Beatty 
withdrew  from  the  firm,  received  twenty  thousand  dol- 
lars for  his  interest  therein,  and  registered  liis  name  in 
connection  with  copybooks.  He  then  contracted  with 
the  defendant  to  prepare  copybooks,  and  these  were  to 
be  sold  under  the  title  Beatty' s  New  and  Improved  Head- 
Line  Copy  Books.    It  was  held  that  he  could  not  do  so.^® 

'*  Metzler     v.      Wood     (Eng.)  The  cases  rest  in  ii  sinij^le  proposi- 

(1876),8  Ch.  D.  606.    "But  when  tion  enunciated  by  liord  Long- 

the  defendant  came  to  print  the  dale  in  Croft  v.  Day,  7  Beav.  84, 

cover,  fair  trading  required  that  which    is    'that   no   man   has   a 

the  exterior  of  the  work  should  right  to  soil  his  own  goods  as  the 

bear  the  name  of  Jouase  as  the  goods  of  another.'     That  is  the 

prominent   word,   and    that   the  principle  on  which   I  decide  this 

name  of  Hcnrcy  as  editor  should  case." 

be  made  subordinate.    The  ques-  ^^  Rose      v.      McLean      (Can.) 

tion  is  whether  the  cover  of  the  (ISOO),  21  Out.  A|)p.  240. 

book  is  nf)t  calculat(!(l  to  deceive.  ■^'^  Canada  I'ldjl.   Co.   v.    limlly 


INFRINGEMENT   OF   TITLES,    ETC. 


441 


Plaintiff  pul)lisli{>(l  a  niapazino  under  the  title  of  Subur- 
ban Life.  Defendant  attenii)ted  the  publication  of  a 
periodical,  Philadelphia  Suburban  Life.  He  was  enjoined." 
The  title  J.  Grubefs  Hagerstmrn  Tcnvn  and  Counttj  Al- 
manack was  held  to  infringe  upon  the  title  T.  G.  Robert- 
son^s  Hagerstown  Almanack.^^ 

The  title  Sherlock  Holmes,  Delective,  has  been  held  to 
infrinj!;(^  Sherlock  Ilolmes.^^ 

A  book  or  paini)hlet  published  by  the  plaintiff  under 
the  title  of  Payson,  Drunlon  &  Scribner's  National  System 
of  Penmanship,  was  held  infringed  by  defendant's  book, 
Independent  National  Syst£m  of  Penmanship.^^ 

effect  of  defendant's  action,  ir- 
respective of  his  intent,  Is  to  pro- 
duce confusion  in  the  public 
mind  and  consequent  loss  to  the 
plaintiff." 

Citing  American  (Hay  Mfg.  ('a- 
V.  American  Clay  Mfg.  Co.  (1901), 
1<)S  Pa.   ISO;  47  Atl.  03G. 

^^  R(>hni.'<on  v.  lierry  (1.S7S), 
50  Md.  591. 

^^  Hopkins  Amiisement  Co.  v. 
Frohman  (190:i),  202  111.  541; 
G7X.  E.  391. 

*"  Potter  V.  McPher.wn  (1880), 
21  1  lun,  559.  "Where  such  a  sini- 
ulatod  resemblance  is  found  in 
the  title  made  u.se  of  by  one 
l)erson  to  tliat  previously  uschI 
by  another  long  engaged  in  the 
same  business,  tl»e  inference  is 
just  and  natural  that  the  motive 
for  doing  .so  is  to  aciiuire  imprup- 


(Can.)  (1885),  11  Can.  Sup.  Ct. 
306.  "In  my  opinion  the  plain- 
tiff had  the  exclusive  right  to  use 
the  name  'lieatty'  in  coimec- 
tion  with,  and  a.s  denoting  copy 
l)0()ks  of  his  manufacture,  and  no 
one  has  the  right  to  the  word  for 
the  purpose  of  passing  off  his 
books  as  those  of  the  plaintiff, 
or  even  when  innocent  of  that 
purpose,  to  use  it  in  any  way  cal- 
culated to  deceive,  or  aid  in  de- 
ceiving the  inil)lic,  to  the  detri- 
ment  of   the   plaintiff  .  .  .  ." 

"  Suburban  Press  v.  Phila.  Co. 
(1910),  227  Pa.  148;  75  Atl.  1037. 
"There  are  two  cla.sses  of  ca.ses 
involving  judicial  interference 
with  the  use  of  names;  first,  where 
the  intent  is  to  get  an  unfair  and 
fraudulent  share  of  aimther's 
business,  and  second,  where  the 


442  THE    LAW   OF   MOTION   PICTURES 

I 

The  title  Dr.  Eliot's  Five-Foot  Shelf  of  the  World's  Best 
Books  and  the  title  Dr.  Eliot's  Five-Foot  Shelf  of  the  World's 
Greatest  Books  were  both  held  to  compete  unfairly  wdth 
the  expression  Dr.  Eliot's  Five-Foot  Shelf  of  Books.^^ 

The  title  Chatterbox  on  a  series  of  pubhcations  has  been 
held  to  uifringe  a  prior  series  under  that  title. ^- 

Comfort  and  Home  Comfort  have  been  declared  in  com- 
petition, the  latter  infringing  on  the  former.''^ 

Plaintiffs  had  for  many  years  printed  the  well-known 
Oxford  Bible.  The  defendant  pubUshed  a  bible  specified 
in  the  title  page  as  an  Oxford  Bible,  The  S.  S.  Teacher's 
Edition  and  on  the  back  as  a  Holy  Bible;  Oxford,  S.  S. 
Teacher's  Edition.  Held  that  was  an  infrmgement,  and 
should  be  restrained."^ 

The  use  of  the  title  Webster's  Dictionary,  unless  there 
was  an  explanation  published  in  such  manner  as  to  indi- 
cate clearly  that  plaintiffs  were  not  its  pubUshers,  was 
held  to  be  unfair  competition. '*''' 

The  complainant  published  a  trade  journal  under  the 
title  The  United  States  Investor.  The  defendant  issued  a 
similar  publication  entitled  The  Investor  and  inserted  at 

erly  the  patronage  and  trade  of  (C.  C.)  22;  Estes  v.  Worthington 

the  other,  and  no  reason  exists  (1887),  31  Fed.  (C.  C.)  154. 

for  excluding  this  case  from  tlie  '^^  Ganncrl    v.    Rupert     (1004), 

control  of  that  presumption."  127  Fed.  (C.  C.  A.)  962. 

*^  Collier  v.   Jomn    (1910),  GO  ^'^  Cliancellor    Oxford    Univ.    v. 

Misc.    (N.   Y.)    97;     120  N.   Y.  Wilmore     Andrews     (1900),    101 

Supp.  991;   modified  140  A.   D.  Fed.  (C.  C.)  44.3. 

(N.    Y.)  911;   12.')   N.   Y.  Supp.  *'■  Ogilvie  v.  Merriam Co.  {\\)07), 

1116.  149  Fed.   (C.  C)  858;  Merriam 

*^  Estes    V.    Leslie    (1886).    27  Co.  v.  Ogilrie  (1908),   159   Fed. 

(C.  C.  A.)  638. 


INFRINGEMENT   OF   TITI.ES,    ETC. 


443 


the  head  of  its  editorial  page  the  following:  Published  by 
the  Investor  Publishing  Company.  It  was  held  that  the 
bill  of  complaint  stated  a  cause  of  action  for  unfair  com- 
petition."' A  newspaper  called  United  States  Police  Cazctte 
was  held  to  infringe  upon  one  called  The  Xational  Police 
Gazette:^'  A  periodical  entitled  Bon  Ton  was  protected 
against  unfair  competition  by  another  periodical  which 
was  issued  under  the  title  Gazette  du  Bon  Ton.^^ 

The  word  Chanticlair  as  the  title  of  a  play  was  held 
to  infringe  the  title  Chantecler."^^ 

The  title  Butter  Brown  in  connection  with  a  play  was 
hold  capable  of  being  protected  u])on  the  theorj-  of  unfair 
competition;  ^°  so  also  the  title  Erminie  '■'  as  well  a.s 
VAiglon.'"-  And  the  title  Mercedes  as  that  of  a  vaude- 
ville sketch  was  likewise  protected/'^ 

It  was  held  that  there  was  unfair  competition  between 
a  dramatic  composition  and  a  motion  picture  both  bearing 
the  same  title,  to  wit:  The  Miracle;  ^^  so  also  in  respect 

of 


« Investor    Publishing    Co 
Mass.    V.    Dobinson    (1890),    72 
Fed.  (C.  C.)  GO;^. 

"  McUsell  V.  Flanagan  (1807), 
2  Abb.  Pr.  R.  (N.  S.)  459.  The 
(lofcnchmt  wtis  not  the  pubhshor 
but  the  vendor  of  the  infrinj^inf; 
l)ul)Hc:ition;  still,  he  was  licld 
liable  jus  a  joint  tort  feasor. 

*^Taiilor  V.  Nast  (101.")),  X'A 
N.  Y.  Siipp.  982. 

*^  Frohtnaii.  v.  .\f orris  (1910), 
OS  Mise.  (X.  Y.)  401;  12:i  N.  Y. 
Supp.  lU'K). 

^OiUcauU    V.    Lamar    (1910), 


1.35  .\.  D.  (X.  Y.)  110:  119  X.  Y. 
Supp.  930. 

<•' ,lro«,sofi  V.  Fleckenstein 
(1880),  2S  VcA.  (C\  C.)  75. 

''^■Frohman  v.  Payton  (1901), 
:M  Mise.  (X.  Y.)  275;  CS  X.  Y. 
Supp.  849. 

'■'  Howard  v.  Lorelt,  MieiiiKan 
C'ireuitCt.,  Wayne  County.  Feb. 
24,  1916;  Trade  Mark  RejKirter. 
Vol.  0,  p.  229. 

'*  Miracle  Co.  v.  Danziger 
(191;?),  X.  Y.  Law  Journal, 
March  8. 


444  THE    LAW   OF   MOTION    PICTURES 

of  the  title  A  Fool  There  Was;  ^'^  and  also  where  the 
title  was  Tfie  Come  B.ack,''^  and  where  it  was  Happi- 
ness.^'^ 

In  the  case  of  the  titles  The  House  of  a  Thousand 
Candles  and  The  House  of  a  Thousand  Scandals  as  the 
names  of  two  motion  pictures,  they  were  held  to  un- 
fairly compete  with  each  other  upon  the  hearing  for  an 
injunction  pendente  lite;  ^^  but  upon  final  hearing  they 
were  held  not  to  infringe  each  other. ^^ 

In  the  case  of  the  title  The  Rosary  the  contrary  was 
the  situation.  The  Justice  presiding  at  the  time  the  appli- 
cation for  an  injunction  pendente  hte  was  made,  held  there 
was  no  infringement  of  title  where  two  motion  pictures 
bore  that  name.^'^  Upon  final  hearing  the  contrary  con- 
clusion was  reached,  the  Justice  then  presiding  holding 
that  the  motion  picture  bearing  that  title  and  released 
subsequently  in  point  of  time  was  unfauly  competing 
with  the  other. '''^ 

The  title  Follies  of  1917  as  the  name  of  a  theatrical 

"  Marc  Klaw  v.  General  Film  ^s  gdig  Polyscope  Co.  v.  Mutiuil 

Co.  (1915),  154  N.  Y.  Supp.  988;  Film    Corp.   (1915),  N.   Y.   Law 

aff'd    171    A.   D.    (N.   Y.)    945;  Journal,  September  28. 

156  N.  Y.  Supp.  1128.  ^»  Selig  Polyscope  Co.  v.  Midml 

'•'^  Dickey  y.  Mutual  Film  Corp.  Film  Corporation   (1917),  N.   Y. 

(1915),    160   N.    Y.    Supp.   609;  Law  Journal,  February  1. 

Dickey  v.  Metro  Pictures  Corpora-  «"  Selig  Polyscope  Co.   v.    Uni- 

tion  (1917),  N.  Y.  Law  Journal,  corn  Film  Service  Corp.    (1916), 

April  28.  N.  Y.    Law   Journal,  September 

"Manners  v.   Triangle  (1917),  16. 

U.   S.   District  Court,  Southern  ''^  Selig  Polyscope  Co.   v.    Uni- 

Disfrictof  New  York,  N.  Y.  Law  corn  Film  Service  Corp.  (1917),  163 

Journal,  June  21.  N.   Y.  Supp.  62. 


INFRINGEMENT    OK    TI'l'LES,    ETC.  445 

])r()dut'ti()ii  was  lieM  iiifriiiged  by  Uie  title  Gus  Hill's 
Follies  of  1917.'^ 

In  England,  defendant  was  restrained  from  using  the 
title  Currcnl  Quotalions  as  the  title  of  its  catalogue  unless 
it  afTixed  thereto  distinguishing  words/"^  And  where 
plaintiff's  work  was  entitled  The  Birthday  Scripture  Text 
Book  and  that  of  defendant  The  Children's  Birthday  Text 
Book,  they  were  held  to  compete  unfairly." 

So  also  the  publisher  of  a  magazine  entitled  The  Monthly 
Odd  Volume  was  enjoined  from  selling  his  periodical  upon 
the  ground  that  such  title  competed  unfairly  with  the 
l)Iaintiff's  annual  publication  entitled  The  Odd  Volume.^'" 

The  defendant  was  enjoined  from  exhibiting  a  motion 
picture  under  the  title  Sealed  Orders  upon  the  ground 
that  a  film  under  such  title  would  unfairly  compete  with 
plaint  ill's  dramatic  composition  bearing  the  same  title/'" 

In  Australia,  the  title  of  a  play  The  Wrong  Mr. 
]Vri(jht,  was  held  to  be  infringed  ))y  that  of  another  i)lay 
calleil  The  Wrong  Mrs.  Wright.'' 

Section  124. — Infringement  of  titles — Titles  held  not  to 
infringe. 

The  Spice  of  Life  and  The  Good  Things  of  Life  as  the 

^"^ Zicg field  FulUcs  Inc.   v.   Gu.s         ".4We/t       v.       Arnsky-Wilson 

Hill  (1916),  N.  Y.  Law  Journal,  (Eur.)  (1911),  Times,  May  13. 
December  5.  **  liakigh     v.     Kiminalograph 

^"^  E wen's  Colonial  Stamp  Mar-  Trading  Company  (Eiig.)  (1914), 

kd    Ltd.    V.    Federal    Stamp    Co.  Times,  March  12. 
(Eng.)    (1907),  Times,  February  "'  Broadhurst   v.  NichoU   (Au.s- 

2,3.  tralian)  (1903),  N.  S.  W.  3  S.  R. 

<^'Mack  V.  Peller  (Eng.),  L.  K.  117. 
14  Eq.  431. 


446  THE    LAW   OF   MOTION   PICTURES 

titles  of  two  books  were  held  not  to  infringe;  ^^  so  also 
where  the  titles  were  Social  Register  and  Newport  Social 
Index.^^ 

In  the  case  of  newspapers  where  the  titles  New  Era  and 
Republican  New  Era  were  used,  they  were  held  not  to 
compete  unfairly.'"  The  same  was  held  with  respect  to 
the  titles  The  Commercial  Advertiser  and  New  York  Com- 
mercial'^ The  title  The  New  Northwest  and  The  North- 
west News  were  held  not  to  compete; '-  so  also  where  the 
titles  were  The  National  Advocate  and  The  New  York 
National  Advocate P 

Where  the  titles  of  monthly  magazines  for  the  young 
were  Our  Young  Folks  and  Our  Folks'  Illustrated  Paper, 
they  were  held  not  to  infringe/"  so  too,  where  the  titles 
were  Motor  Boat  and  Motor  Boating  Magazine^" 

Plaintiff  published  a  book  entitled  Farthest  North 
Nansen.  Defendant's  book  was  entitled  The  Fram  Ex- 
pedition. Nansen  in  the  Frozen  World.  Including  Earlier 
Arctic  Explorations.    It  was  held  not  to  infringe.^^ 

6«  Stokes    V.    Allen    &     While         "  Duniway   PiM.    Co.    v.    The 

(ISOO),  50  Hun  (N.  Y.),  526;  9  Northwesl  Printing  &   Pvbl.   Co. 

N.  Y.'supp.  84G.  (1884),  11   Oregon,  322;   8  Pac. 

^"^  Social     Register     Assoc'n    v.  283. 
Murphy  (1904),  128  Fed.  (C.  C.)  '^  Snoioden   v.    Noah,   Hopkins 

110.  Ch.  R.  347;  Cox  1. 

'"i^c//  V.  Locke  (1840),  8  PaiRe  ^Wsgood  v.  Allen  (1872),  Fed. 

(N .  Y.) ,  74 ;  see  also :  (Iroccrs  Jour-  Cas.  10603. 

vol  Co.  V.  Midland  Publishing  Co.  ■•'  Motorbnat  Pub.  Co.  v.  Motor 

(1907),  127  iMo.  App.  356.  lioating    Co.     (1907),    57     Mise. 

"  Commercial  Advertising  Assu  (X.  Y.)  108;  107  N.  Y.  Supp.  468. 
V.  Hogucx  (1H9S),  26  A.  D.  (X.  Y.)  "  Harper  &  Bros.  v.  Lare  et  al. 

279;  49  N.  Y.  Supp.  938.  (1900) ,  103  Fed.  (C.  C.  A.)  203. 


INFRINGEMENT   OF   TITLES,    ETC.  117 

Charlcj/s  Uncle  was  held  iKJt  to  infringe  the  title  of 
plaintiff's  play  Cfiarlei/s  Autil.''' 

Defendants  were  permitted  to  use  the  title  St.  Ehno 
as  the  name  of  their  play  notwithstanding  the  fact  that 
l)rior  to  defendant's  use  i)laiiitilTs  had  ])r()duced  a  play 
under  the  same  title."** 

So  also  with  respect  to  the  title,  Charity''^  and  to  the 
title  Tfic  Shadow.^'' 

The  title  Nick  Carter  as  that  of  a  motion  picture  was 
held  not  to  unfairly  compete  with  tlie  same  title  as  the 
name  of  a  weekly  i)eri()dical.''' 

Plaintiff,  the  i)ul)lisher  of  a  series  of  pamphlet  works 
of  fiction  entitled  the  Old  Sleuth  Library,  sought  to  re- 
strain d(>fendant  who  published  a  similar  series  of  pam- 
phlets under  the  title  Xcw  York  Detective  Library,  from 
publishing  any  book  or  pamjihlet  containing  in  its  title, 
or  in  any  part  of  it,  the  word  Sleuth.  The  comphiint  was 
disniissed.^- 

Defendant  produced  a  motion  i)ieture  under  the  title 
The  Girl  Who  Did  Not  Care.  Plaintiff  had  produced  a 
motion  ])icture  before  defendant's  entitled  The  Girl  Who 
Doesn't  Know.     Injunction  was  denied.'*^ 

It  was  held  in  Canada  that  there  was  no  unfair  eom- 

"  r  roll  man    v.    Miller    (1894),  *^  Alias   Mannfnclurittg   Co.    v. 

S  Misc.   (N.   Y.)   ;J7!);  20  X.   Y.  Street  cfc  Smith  (1913),  'JO-t  Val. 

Supp.  1109.  (C.  C.  .\.)  39S. 

'HUn.scr  y.  St.  Elmo  Co.  {IdOO),  »'Munro     v.     Toiuscij     (1.S91), 

17.-)  I'Vd.  (('.  (".)  •27»).  129  N.  Y.  :iS;  29  X.  K.  9. 

■■• /.saar.s-     v.     Dnli/     (1S74),     7  "^  li.    S.    Moss    .Motion   I'icturc 

Jones  &  SjxMU'cr  (N.  Y.),  .')ll.  Corp.    v.    Ivan    Film    Prod.    Inc. 

^  Strin-ger  v.   Froliman    (191.')),  (1917),  X.  Y.  Law  Juunuil,  Jan. 

152  N.  Y.  Supp.  935.  23. 


448  THE    LAW    OF   MOTION    PICTURES 

petition  in  the  case  of  two  books  entitled  The  New  Cana- 
dian Bird  Book  and  The  Canadian  Bird  Book  respectively.^'' 

In  England  the  title  The  Evening  Post  was  held  not  to 
infringe  the  title  The  Morning  Post;  ^^  so  also  when  the 
titles  were  The  North  Express  and  The  Daily  Express;  ^^ 
the  Mail  and  Morning  MaiU'^ 

Where  the  titles  of  two  magazines  were  The  Field  and 
The  Field  and  Kennel,^^  there  was  no  unfair  competition. 
No  injunction  was  granted  where  the  titles  of  the  maga- 
zine were  Everyhodifs  Magazine  and  Everybody's  Weekly.^^ 
The  court  also  refused  an  injunction  where  the  titles  of 
the  plaintiff's  magazines  were  The  Plumber  and  Decorator 
and  The  Decorators'  and  Painters'  Magazine,  and  that  of 
defendant's  publication  The  Decorator?^  Plaintiffs  issued 
a  periodical  entitled  M.A.P.,  the  title  being  an  abbrevia- 
tion for  Mainly  About  People.  The  defendant's  pubhca- 
tion  was  entitled  P.  T.  0.,  being  an  abbreviation  for 
People  Talked  Of.  No  injunction  was  allowed.^ ^  And  a 
publication  entitled  Punch  ct*  Judy  could  not  enjoin  a 
publication  under  the  title  of  either  Punch  or  Judy.^- 

»*  Mclndoo    V.    Musson     Book  »» Cox  x.  Sports  Publishing  Co. 

Co.   (Can.)    (1013),  35  0.   L.  11.  (Eng.)  (1902),  Times,  June  14. 

42.  '    ^^  Ridgwaij  Co.  v.  Amalgamaicd 

^^Borthwick     v.     The    Evening  Trm  (Eng.)  (1911),  28  T.  L.  R. 

Pod  (Eng.)  (1888),  37  Ch.  Div.  149. 

449.  *'  Dale  Rcj/nolds  v.  Tntdc  Papers 

See  also:  KcUg  v.  Bylcs  (l':ng.)  J'nbl.  Co.   (l':ng.)   (1902),  Times, 

(1880),  13  Ch.  Div.  (582.  December  9. 

»"  Dillon     V.     Pearson     (I'hig.)  "' <".    Arthur    Pearson    Ltd.    v. 

(1901),  Times,  December  23.  T.    I'.   (rConnor    (Eng.)    (1900), 

"  Waller     v.     Emmoll     (Eng.)  Times,  Ma.v  12. 

(1885),   54    L.    J.    Ch.    1059;    53  ^^  Bradbury    v.    Bceion    (Eng.) 

L.T.437.  (18U9),  18  W.  R.  33. 


ACQUIESCENCK    AND    AHA.M.O.N.MKNT  449 

PlaintilT  and  dofeiKlaiit  both  publishrd  l;(;(jks  under 
the  title  Collage  Homes  of  England.  The  books  were  of 
an  entirely  different  character.  No  injunction  was  al- 
lowed;'•'•■'  so' also  in  the  case  of  the  title  Our  Sailor  King, 
the  court  holding  that  the  books  appealed  to  different 
classes  of  customers,  hence  no  competition,  even  though 
the  text  was  quite  similar.'" 

It  was  held  that  plaintifT,  the  owner  of  a  i)lay  entitled 
Where  Uiere's  a  Will,  Ihere's  a  Way,  was  not  entitled  to 
enjoin  the  production  of  defendant's  play  entitled  Where 
there's  a  WilU' 

Section  125. — Acquiescence  and  abandonment. 

Mere  non-user  of  a  title  for  a  length  of  time  is  not  in 
itself  an  abandonment  of  the  right  to  its  exclusive  use.^ 
There  must  be  something  more  tangible,  some  express 
act  to  evince  such  an  intent  to  abandon,  or  a  series  of 
acts  from  which  such  intent  may  be  clearly  implied.  "To 
estabUsh  the  defense  of  abandonment  it  is  necessary  to 
show  not  only  acts  mdicating  a  practical  abandonment, 
but  an  actual  intent  to  abandon.  Acts  which  unexplained 
would  be  sufficient  to  establish  abandonment,  may  be 
answered  by  showing  that  there  never  was  an  intention 
to  give  up  and  relinciuish  the  right  claimed." '' 

*^  Crotch     V.     Arnold     (Eng.)  Fwl.  (C.  C.)  121.    The  fiiilure  to 

(HKM)),  M  S.  .1.  40.  put  out  the  article  for  a  short 

'>*John  F.  Sluur  it  Co.  v.  Col-  iKTiod   so   that   it   i.s   not   in   the 

fi/w  (EnR.)  (1911),Times,  June'J.  market  iit  the  time  of  the  com- 

*^  Brocmd     v.     Meyc''     (J'^"g)  meiicement  of  suit,  does  not  con- 

(1912),  29  T.  L.  U.  148.  stitute  abandonment. 

^Jantwy    v.    Pan-Coa.st     Yen-  '•  Snjkhtwr    v.     Eisner    ct    nl. 

tilator    Mfg.     Co.     (1904),     128  (1900),    179   U.   S.    19;  21   Sup. 


450 


THE    LAW   OF   MOTION    PICTURES 


The  mere  fact  that  third  parties  have  made  use  of  the 
plaintiff's  title  is  not  of  itself  conclusive  or  presumptive 
evidence  of  an  abandonment.^^  The  burden  always  re- 
mains upon  the  defendant  to  establish  the  abandonment.^^ 
Having  established  such  abandonment,  however,  the 
courts  will  refuse  to  enjoin  the  defendant  from  using  the 
title;  it  will  follow  then  as  a  matter  of  course  that  the 
plaintiff  will  receive  neither  an  accounting  of  profits  nor 
damages.  ^°° 


Ct.  7.  Quoted  with  approval  ia 
Baglin  v.  Cusenier  Co.  (1911), 
221  U.  S.  580;  31  Sup.  Ct.  669, 
where  it  was  said:  "There  must 
be  found  an  intent  to  abandon  or 
the  property  is  not  lost." 

^i  Cuervo  v.  Henkell  (1892),  50 
Fed.  (C.  C.)  471.  .  .  .  "And  as 
to  other  imitations  of  his  own 
trade-mark,  there  is  not  a  particle 
of  evidence  to  show  that  these 
were  made  or  sold  with  his  con- 
sent or  acquiescence.  This  de- 
fense has  been  so  frequently  and 
forcibly  condemned  l)y  authority 
that  further  discussion  is  profit- 
less.    (Citing  cases)." 

Intermilional  Cheese  Co.  v. 
Phoenix  Cheese  Co.  (1907),  118  A. 
D.  (N.  Y.)  499;  103  N.  Y.  Supp. 
362.  "And  the  fact  that  hotels 
and  restaurants  were  sclhiif:;  otlier 
brands  of  cheese  as  Pliiladclpliia 
cream  cheese  docs  not  show  an 
intent  by  defendant  to  abandon 


its  trade-name  or  to  make  it 
public  property." 

^^  Julian  V.  Hoosier  Drill  Co. 
(1881),  78  Ind.  408;  Indian 
Rubber  Co.  v.  Rubber  Comb  Co. 
(1879),  45  Super.  Ct.  (N.  Y.)  258; 
Saxlehner  v.  Eisner  (1900),  179 
U.  S.  19;  21  Sup.  Ct.  7. 

ActiengeseUschxiJt  v.  Arnberg 
(1901),  109  Fed.  (C.  C.  A.)  151. 
"  It  is  no  answer  to  his  complaint 
against  any  particular  person 
who  has  so  used  it  to  say  that 
such  trespasser  is  not  the  only 
one  who  has  done  .so,  for  a  tres- 
passer cannot  justify  upon  the 
ground  that  otliers  have  com- 
mitted hke  trespasses.   .  .  ." 

^<>»  Black ivcU  V.  Dibrcll  (1878), 
Fed.  Cas.  (C.  C.)  1475;  Royal 
Baking  Powder  v.  Raymond 
(1895),  70  Fed.  (C.  C.)  376; 
j\fntrndez  v.  Ilolt  (1888),  128 
U.  S.  514;9  8up.  Ct.  143. 


ACQUIESCENCE    AND    ABANDONMENT  451 

Acciuicsccncc  may  consist  in  cither  permitting  a  third 
party  to  use  the  title  for  a  time  without  making  any  ])ro- 
test,  or  in  allowing  the  defendant  to  use  it  for  a  long  time 
before  commencing  the  action  to  enjoin. 

To  constitute  accjuiescence  there  must  be  full  scienter 
on  the  part  of  the  plaintiff.  Unless  he  knows  of  the  in- 
fringing acts,  he  cannot  be  said  to  acquiesce  in  them. 

It  is  no  defense  to  an  accounting  and  claim  for  dam- 
ages to  establish  user  of  the  title  by  third  parties,  unless 
in  addition  thereto  the  defendant  shows  acquiescence  in 
such  user.'^' 

Where  the  plaintiff  has  knowingly  permitted  the  de- 
fendant or  others  to  use  his  title  for  a  long  time  and  has 
made  no  attempt  to  assert  his  rights  as  against  them,  he 
will  not  be  permitted  to  pick  out  the  defendant  as  a  special 
infringer,  pursue  him  alone,  and  recover  an  account  of 
profits. 

The  English  rule  penalizes  a  plaintiff  by  refusing  all 
relief  including  injunction.     The  American  courts,  how- 

•"'jSe/ig  Polyscope  Co.  v.  L'ni-  tlieir  films  at  dates  long  after 
corn  Film  Service  Corp.  (1917),  the  phiintiflfs  Rowland  and  Clif- 
UV.i  \.  Y.  Siipp.  62.  "Justifica-  ford  acquired  their  trade-mark 
tion  for  tliis  use  of  the  phiin-  by  original  adoption.  Whether 
tilT's  trade-mark  cannot  he  fountl  the  lihns  referred  to  were  actually 
in  the  fact  that  the  catalogues  exhibited  under  the  condition.s 
in  evidence  disclose  the  dcsigtia-  which  the  plaintifTs  might  or 
tion  of  other  motion  picture  films  might  not  have  found  to  he  in- 
by  the  use  of  the  word  'Rosary.'  jurious  to  their  rights  is  a  matter 
So  far  as  these  catalogues  have  of  sfHjculation,  but  the  defend- 
any  value  as  proof,  they  indicate  ant's  case  is  not  aided  by  point- 
no  more  than  tliat  other  jK>rsoiis  iiig  to  a  possil)le  invasion  of  these 
in  three  instances  have  so  naiued  rights  by  others." 


452 


THE    LAW   OF   MOTION    PICTURES 


ever,  will  ordinarily  grant  injunction  when  the  right 
thereto  is  made  out,  even  though,  there  be  acquiescence, 
but  will  in  such  cases  deny  an  account  of  profits  and  an 
award  of  damages.^"-  Nor  will  they  in  such  cases  grant  a 
temporary  inj  unction.  ^°^ 

The  reason  for  the  American  rule  is  that  where  the 
plaintiff  has  stood  by  wdthout  protest  and  permitted  the 
defendant  to  infringe  upon  his  rights,  and  has  allowed  him 
to  expend  moneys  in  marketing  and  advertising  his 
product,  he  is  not  equitably  entitled  to  the  fruits  of  the 
defendant's  enterprise,  or  to  make  any  claim  for  damages 
sustained  by  him.  But  not  having  divested  himself  of 
his  property  right,  equity  will  protect  him  agamst  any 
future  infringement  thereof. ^°^ 


^°^  McLean  v.  Fleming  (1877), 
96  U.  S.  245.  "Cases  frequently 
arise  where  a  court  of  equity 
will  refuse  the  prayer  of  the  plain- 
tiff for  an  account  of  gains  and 
profits  on  the  ground  of  delay 
in  asserting  his  rights,  even  when 
the  facts  proved  render  it  proper 
to  grant  an  injunction  to  prevent 
further    infringements." 

Allen  V.  Walker  (1916),  235 
Fed.  (D.  C.)  230.  Where  de- 
fendant had  been  infringing  for 
two  years,  and  had  not  boon  noti- 
fied to  desist  it  wa.s  hold  such 
laches  as  to  preclude  an  account- 
ing. 

Slraiisff  V.  Nolnsnnc  (U>.  (1015), 
240  U.  S.  179;  30  Suj).  Ct.  288; 


Menendez  v.  Holl  (1888),  128 
U.  S.  514;  9  Sup.  Ct.  143;  Avioa- 
keag  v.  Spear  (1849),  2  Sandf. 
S.  C.  599. 

See  in  this  connection:  Saioyer 
v.  Kellogg  (1881),  9  Fed.  (C.  C.) 
601. 

^'^^  Burns  v.  Burns  (1902),  118 
Fed.  (C.  C.)  944;  Virginia  Hot 
Springs  v.  liegeman  (1905),  138' 
Fed.  (C.  C.)  855. 

^'>*  Menendez  v.  Holt  (1888), 
128  U.  S.  514;  9  Sup.  Ct.  143; 
Fairbanks  v.  Lrwkel  (1902),  116 
I'od.  (C.  C.  A.)  332;  Sawyer  v. 
Kellogg  (1881),  9  Fed.  (C.  C.) 
001;  McLean  v.  Fleming  (1877), 
96  U.  S.  245. 


RELIEF  4r)3 

Where  the  defeiKhuit  had  originally  manufacturfd 
and  sold  "Royal"  baking  jxjwder  and  had  become  bank- 
rupt, he  could  not  after  a  lapse  of  twenty-three  years, 
resume  the  use  of  that  trade  name,  the  plaintiff  having 
in  the  meantime  built  up  a  large  business  under  the 
same  trade  name.'"' 

Some  wTiters  have  sought  to  draw  a  distinction  be- 
tween "laches"  and  "accjuiescence"  although  the  terms 
have  been  used  interchangeably  by  the  courts.  We  can- 
not see  any  real  distinction  between  the  two.  Both 
involve  knowledge  on  the  part  of  the  plaintiff  of  the  de- 
fendant's invasion  of  his  rights.  Both  contemplate  a 
standing  by  and  a  tacit  permission  to  the  defendant  to 
continue  his  infringement. 

Section  126. — Relief. 

In  actions  of  this  kind  the  i)laintiff  is  entitled  to  an 
injunction,  an  accounting  of  defendant's  profits,  and 
damages  sustained  by  him.  It  does  not  necessarily  follow 
that  in  every  case  the  plaintiff  is  entitled  to  all  these 
modes  of  relief.  lie  is  ordinarily  entitled  to  an  injunc- 
tion where  he  has  not  abandoned  the  title. '^ 

\Miether  he  is  entitled  to  an  accounting  or  damages 
is  a  question  to  be  determined  from  the  facts  of  each  i)ar- 
ticular  case.  The  cases  thus  far  have  not  laid  down  uni- 
form rules.  For  instance,  in  several  cases  the  use  of  the 
identical  title  was  held  sufficient  to  entitle  the  plaintiff 

•"7?07/aZ   Baking   Co.    v.   lioi/-  OH;  Xocbiiis  v.  De  Jonge  &  Co. 

7nam/(lSlF)),70F(Hl.  ((\C.)370.  (1914),  215   Fetl.    (D.    C.)    443; 

'"*  Lr  Pngc  Co.  v.  Russian  Cc-  Cnilal  Drug  Co.  v.  licclaniis  Co. 

menl  Co.  (1S02^,.^)1  Fed.  ((\  V.  A.)  (1!)13),  20<>  l-Vd.  (D.  C.)  570. 


454 


THE    LAW   OF   MOTION    PICTURES 


to  an  accounting  and  damages,  even  though  nothing  else 
^"^    Then  again,  to  entitle  the  plaintiff  to  an 

their  ownership,  management  and 
control.    The  defendant  disclaims 


was  proven 

^"''Miracle  v.  Danziger  (1913), 
N.  Y.  Law  Journal,  March  8; 
Klaw  V.  Gen&'ol  Film  Co.  (1915), 
154  N.  Y.  Supp.  988;  aff'd  171 
A.  D.  (N.  Y.)  945;  156  N.  Y. 
Supp.  1128;  Selig  Polyscope  v. 
Unicorn  Film  (1917) ,  N.  Y.  Law 
Journal;  163  N.  Y.  Supp.  62. 

Ziegfeld  Follies  v.  Gus  Hill 
(1916),  N.  Y.  Law  Journal,  De- 
cember 5.  "  Plaintiff  does  not 
claim  on  this  motion  any  ex- 
clusive right  to  the  use  of  the 
word  "Follies"  as  a  name  ap- 
plied to  theatrical  attractions. 
It  merely  asks  to  be  protected 
against  the  appropriation  by 
the  defendant  of  the  name  or 
title  "Follies  of  1917"  or  "Fol- 
lies of"  any  particular  year  and 
his  using  it  as  the  title  of 
a  theatrical  production,  on  the 
very  sufficient  ground  that  it 
or  its  predecessors  in  interest 
created  and  applied  that  title  to 
a  successful  theatrical  production 
nearly  ten  years  ago,  and  have 
used  it  ever  since  as  the  name  of 
a  distinctive  and  very  popular 
theatrical  production,  which  by 
the  expenditure  of  a  very  large 
sum  of  money  the  plaintiff  and 
ifs  prefleressors  in  int«rest  have 
popularized   and   identified   with 


any  intention  of  misappropriating 
plaintiff's  property  rights  or  trad- 
ing on  plaintiff's  name  and  points 
to  the  fact  that  the  title  he  uses 
is  "Gus  Hill's  Follies  of  1917," 
claiming  that  the  important  part 
of  the  name,  so  far  as  drawing 
power  is  concerned,  is  in  his  own 
name  "Gus  Hill,"  which  is  widely 
known  throughout  the  country 
and  identified  with  a  certain  class 
of  productions.  It  is  doubtless 
true  that  the  defendant's  name 
is  widely  known  and  serves  to 
identify  in  the  minds  of  the  public 
the  kind  of  production  to  be  ex- 
pected under  his  management  or 
direction.  But  if,  as  the  defend- 
ant claims,  it  is  his  name  that 
attracts,  rather  than  the  fanciful 
name  of  the  production,  whatever 
it  might  be,  it  is  difTicult  to  see 
why  he  deliberately  adopts  the 
particular  name  that  plaintiff 
has  popularized  and  lias  so  long 
used,  or  why  ho  insists  so  strongly 
upon  using  this  particular  name. 
It  is  a  ca.se  where,  as  Judge  Coxe 
observed  in  Florence  Co.  v.  ./.  C. 
Dowd,  178  Fed.  Rep.  73,  70,  "if 
honest  he  should  stop  voluntarily, 
and    if    dishonest    he    should    be 


RELIEF 


455 


accounting  and  an  assessment  of  damages,  it  was  lield 
that  he  must  estabhsh  actual  losses  as  well  as  fraud.'** 
Motion 


corn  polled 
j?rante<J." 
Waller 
(1885),   54 
L.  T.  4.37. 
newspajx^r 


to     stop. 


V.  Emmolt  (Eng.) 
L.  J.  Ch.  1059;  53 
Plaintiff  who  owned  ii 
called  the  Mail  at- 
tempted to  restrain  defendant 
from  pul)lishing  a  i)aj)er  called 
the  Morning  Mail.  Lord  Justice 
Bowen  said: 

"The  use  of  a  similar  name,  for 
instance,  is  not,  as  a  matter  of 
law,  conclusive  to  show  that  there 
is  an  intention  to  deceive,  or  as  a 
matter  of  law,  that  there  would 
be  such  a  deception  as  would 
cause  an  interference  with  or 
damage  to  the  business  of  anotiier, 
because  we  can  conceive  cases 
wliere  the  use  of  a  similar  name 
might  be  so  hedged  round  by 
other  circumstances  as  to  destroy 
the  natural  effect  of  such  an  act. 
But  I  do  think  in  nine  cases  out 
of  ten  the  use  of  a  name  would 
be  evidence  from  which  feu- 
minds  could  draw  any  other  in- 
ference except  that  damage 
would  bo  done  by  deceiving  the 
customer  or  putilic  in  resix^ct  of 
the  two  businesses." 

Taendslicksfabriks  A.  Vidcan  v. 
Meijers  (1893),  139  N.  Y.  3(>4; 
34  N.  E.  904.    "It  i.s  not  neces- 


sary to  sustain  an  action  cjf  this 
kind  cither  to  establish  a  guilty 
knowledge  or  fraudulent  intent 
on  the  part  of  the  wrong-dcwr. 
It  is  sufficient  that  the  proprietary 
right  of  the  party  and  its  actual 
infringement  is  sho^NTi." 

See  also:  Howard  Co.  v.  Carlton 
(1915),  219  Fed.  (D.  ('.)  913; 
Oneida  Communily  v.  Oneida 
(1914),  150  X.  Y.  Supp.  923; 
modified  168  A.  D.  (X.  Y.)  709; 
154  X.  Y.  Supp.  391;  Salration 
Army  v.  Salvation  Army  (1909), 
135  A.  D.  (X.  Y.)  268;  120  X.  Y. 
Supp.  471;  Clinton  Metallic  Paint 
V.  A'.  Y.  Metallic  Paint  (1898), 
23  Misc.  (X.  Y.)  66;  (1898),  50 
N.  Y.  Supp.  437. 

'^  Elgin  Nat.  Watch  Co.  v. 
Illinois  Watch  Co.  (1900),  179 
U.  S.  665;  21  Sup.  Ct.  270;  O.^- 
good  v.  Allen  (1872),  1  Holmes 
(C.  C),  185;  Fed.  Cas.  10603; 
Day  V.  Webster,  23  A.  D.  (X.  Y.) 
mi;  49  X.  Y.  Supp.  314;  Kipling 
V.  PiUnam  (1903),  120  Fed.  (C. 
C.  A.)  641;  Morgan  v.  Walton 
(1898),  86  Fetl.  (C.  C.  A.)  605; 
.V.  A'.  Fairbank  Co.  v.  Windsor 
iwm),  124  Fetl.  (C:.  C.  A.)  200; 
Pilliken  Co.  v.  Baker  ct  B.  Co. 
(190<)),  174  Fed.  (C.  C.)  829. 

United  Drug  Co.  v.  Redanus  Co. 


456 


THE    LAW   OF   MOTION    PICTURES 


Some  cases  hold  that  although  fraud  is  not  established 
specifically,  and  there  is  no  direct  proof  of  actual  loss, 
nevertheless  an  accounting  and  damages  will  be  allowed.  ^°^ 
Each  case  must  be  decided  upon  its  own  pecuhar  facts. 
Where  a  play  has  achieved  national  or  international  re- 
nown, and  is  well  known  to  the  public,  the  mere  appro- 
priation of  the  title,  no  matter  whether  it  be  accidental  or 
deUberate,  is  in  itself  sufficient  to  estabUsh  a  wrongful 
intent,  giving  the  rights  to  injunction,  accounting  and 
damages.  ^^°     On  the  other  hand,   where  the  plaintiff's 


(1913), 206 Fed. (D. 0570.  "... 
We  are  clearly  of  opinion  that  the 
facts  stated  require  us,  under 
the  express  mandate  of  the  au- 
thorities cited,  to  hold  that  the 
right  of  the  plaintiff  to  the  ex- 
clusive use  of  the  word  Hex  in 
connection  with  medicinal  prep- 
arations for  dyspepsia  and  kindred 
diseases  of  the  stomach  and  di- 
gestive organs  must  he  sustained. 
The  following,  among  many  cases, 
while  requiring  that  judgment, 
also  show  that  while  an  injunc- 
tion against  the  future  use  of  the 
word  Hex  in  coniicction  with  the 
character  of  preparations  in- 
dicated should  1)0  granted,  no 
accounting  for  profits,  nor  any 
assessment  of  damages  for  un- 
fair trade,  need  on  the  facts 
found  be  decreed.  Snxlehner  v. 
Eisner  and  Mendelsohn  Co. 
(HKX)),  171)  U.  S.  11);  Snxlehner  v. 


Siegel-Cooper  Co.  (1900),  179 
U.  S.  42;  Menendez  v.  Holt  (1888), 
128  U.  S.  514;  McLean  v.  Fleming 
(1877),  96  U.  S.  245." 

^"^  Dickey  v.  Mutual  (1916), 
160  N.  Y.  Supp.  609;  N.  K.  Fair- 
hank  Co.  V.  Windsor  (1903), 
124  Fed.  (C.  C.  A.)  200. 

^^°Frohman  v.  Payton  (1901), 
34  Misc.  (N.  Y.)  275;  68  N.  Y. 
Supj).  849;  Frohman  v.  Morris 
(1910),  68  Misc.  (N.  Y.)  461; 
123  N.  Y.  Supp.  1090.  See  in 
this  connection:  Kathreiner  v. 
Paslor-Kneipv  (1879),  82  Fed. 
(C.  C.  A.)  321. 

See  also  in  this  coimection: 
Ilier  v.  Abrahams  (1880),  82 
N.  Y.  519.  To  maintain  an  action 
for  unfair  competition  because 
of  the  use  of  the  same  trade;  name, 
trade-mark,  symbol  or  device 
it  is  not  necessary  to  show  that 
there  is  an  intent  to  defraud. 


RELIEF 


457 


play  is  not  nationally  or  univorsally  known,  an  innocent 
party  will  only  be  enjoined  from  future  infringements. 
In  any  case  where  there  is  an  intentional  infringement,  or 
fraud  is  pen^etrated,  the  plaintiff  is  entitled  to  an  ac- 
counting and  damages;  so  too,  where  an  innocent  infringer 
after  notice  persists  in  the  use  of  the  title. ^" 

Notice  may  be  given  l)y  wonl  of  mouth  or  by  letter. 
Registration  of  a  play  in  the  office  of  the  Register  of 
Copyrights  is  notice  in  like  manner  as  the  recording  of  a 
deed."'-  Suit  actually  commenced  and  service  of  a  sum- 
mons therein  is  the  best  form  of  notice."' 


See  also  Dutton  v.  Cupplcs, 
(1907),  117  A.  D.  (X.  Y.)  172; 
102  N.  Y.  8upp.  300. 

'*' Fuller  V.  Huff  (1000),  104 
Fed.  (C.  ('.  A.)  143.  "Although 
tiio  intent  of  the  defendant's 
principal  wlion  it  coniineneod 
to  use  the  name  '  Health  Food,' 
may  have  been  innocent,  the  con- 
tinuance, after  it  had  learned  of 
the  complainant's  prior  use  in- 
dicates its  deliberate  intention  to 
use  the  name  without  reference 
to  the  complainant's  possible 
prior  rights.  On  v.  Johnson 
(Fng.),  13  Ch.  Div.  431. " 

Singer  MUj.  Co.  v.  Long  (Eng.) 
(18S2),L.  R.  8App.  ('as.  15.  "It 
is  not  honest  for  them  (the  in- 
fringers) to  iHTseven>  in  their 
intention,  though  originally  the 
intention  might  not  have  bcH.'n 
otherwi.se  than  honest." 


To  the  same  effect:  Dickey  v. 
Metro  Pictures  Corporation  (1917), 
N.  Y.  Law  Journal,  April  28th. 

"'-' A'fl/toHa/  Car  Brake  Co.  v. 
Terre  Haute  Co.  (1884),  19  Fed. 
(C.  C.)  520.  "In  reference  to 
this  subject  of  knowledge  of  the 
patent,  I  say  to  you  that  everj'- 
one  is  bound  to  take  notice  of  the 
existence  of  a  patent  and  the 
rights  of  parties  under  it,  and  is 
held  resiK)nsible  to  pay  for  ever>' 
infringement  that  he  actually  jx^r- 
|x»trates,  just  a.s  if  he  did  know  it. 
It  is  like  the  record  of  a  (ked: 
the  record  of  patents  of  Wiushing- 
ton  is  notice  to  everyone  just 
lus  your  title  deeds  in  the  rwords 
of  the  proper  county  arc  notice 
to  all  the  world  of  your  title." 

"^Section  25  (b).  Copyright 
L'lw  of  the  United  States  of  l\M.Y.). 
"But    the    foregoing    exceptions 


458 


THE    U^Vr   OF   MOTION    PICTURES 


In  all  these  cases  the  rehef  granted  is  primarily  directed 
toward  the  protection  of  the  trader  rather  than  the  protec- 
tion of  the  pubhc.^^^ 

Actual  deception  is  not  required  to  be  proven.  It  is 
sufficient  that  the  use  of  the  title  is  calculated  to  de,ceive 
the  pubhc.^^-^ 


shall  not  deprive  the  copyright 
proprietor  of  any  other  remedy 
given  liim  under  this  law,  nor 
shall  the  limitation  as  to  the 
amount  of  recovery  apply  to  in- 
fringements occurring  after  the 
actual  notice  to  a  defendant, 
either  by  service  of  process  in  a 
suit  or  other  written  notice  served 
upon  him." 

i»^  Au7it  Jemima  Mills  Co.  v. 
Rignmj  &  Co.  (1916),  234  Fed. 
(D.  C.)  804.  "The  fundamental 
basis  of  the  private  remedy  is 
however  not  the  protection  of 
the  public  from  imposition,  but 
injury  to  the  complainant.  That 
the  public  Is  deceived  may  be 
evidence  of  the  fact  that  the 
original  proprietor's  rights  are 
being  invaded.  If,  however,  tlie 
rights  of  tlie  original  proprietor 
are  in  nowise  interfered  with, 
the  deception  of  the  public  is  no 
concern  of  a  (-ourt  of  chancery." 

Ilanorer  Milling  Co.  v.  Mcl- 
calf  (lOlo),  240  U.  ^.  403;  36  Sii]). 
Ct.  3')?.  "The  redress  that  is 
accorded     in     trade-mark     ca-ses 


is  based  upon  the  party's  right 
to  be  protected  in  the  good-will 
of  a  trade  or  business.  The  pri- 
mary And  proper  function  of  a 
trade-mark  is  to  identify  the  or- 
igin or  ownership  of  the  article 
to  which  it  is  affixed.  Where 
a  party  has  been  in  the  habit  of 
labelling  his  goods  with  a  dis- 
tinctive mark,  so  that  purchasers 
recognize  goods  thus  marked  as 
being  of  his  production,  otiiers 
are  debarred  from  applying  the 
same  mark  to  goods  of  the  same 
description,  l^ecause  to  do  so 
would  in  effect,  represent  their 
goods  to  bo  of  his  production 
and  would  tend  to  deprive  him 
of  the  profit  he  might  make 
through  the  sale  of  the  goods 
which  tlie  pun-haser  int^nided  to 
buy.  ('ourls  alTitnl  rcih'css  or 
relief  upon  the  grounil  that  a 
party  has  a  valuable  interest  in 
tlie  good-will  of  his  trade  or 
l)usiness,  and  in  the  trade-mark 
iidoptcd  to  niaiiitaiu  ami  extend 
it." 

''■- Fmlinmii    v.    MitUr    (1.S94), 


RELIEF 


4.59 


While  some  of  the  text  writers  have  attempted  to  dis- 
tinguish between  imfuir  competition  and  actions  based 
on  the  unfair  use  of  a  trade-mark  or  trade  name,  we  see 
no  such  difference.  Actions  based  on  the  \NTongful  use 
of  a  trade  name  are  embraced  within  the  pjeater  field  of 
unfaii'  comi)etition."'' 

The  plaintiff  is  not  compelled  to  wait  until  there  is  an 
actual  infringement.     He  may  apply  for  and  .secure  an 


8  Misc.  (N.  Y.)  379;  20  X.  Y. 
Supp.  1100.  (^uotiiiK  from  Shook 
V.  Wood,  :V2  Lcfi.  Int.  204.  tlie 
C()urt  .said,  "If  it  was  not  the  de- 
fendant's intention  to  produce 
the  plaintiff'.s  play  the  effect  of  it 
was  to  mislead  the  public  and 
thereby  injure  the  plaintiffs  in 
their  future  business." 

lioj/  Wufrh  Co.  V.  Cannan  Roy 
Watch  Co.  (1,S00),2«  Misc.  (X.  Y.) 
4.");  fxS  X.  Y.  Supp.  070;  Fi.^cher  v. 
liUmch  (1803),  13S  X.  Y.  244; 
a3  N.  E.  1040.  "The  true  test  is 
whether  the  rcsenil)lance  is  .sudi 
that  it  is  calculated  to  dec'ei\e 
and  does  in  fact  deceive  under  the; 
ordinary  conditions  whicli  pre- 
vail in  the  conduct  of  the  partic- 
ular traflic  to  which  the  contro- 
versy relates." 

Oneida  ConwuDiHij  v.  Oneida 
a.  T.  Co.  (1014),  loO  X.  Y.  Supp. 
923;  motlifieil  168  A.  D.  (X.  Y.) 
769;  l.'>4  X.  Y.  Supp.  301.  "The 
word  'calculate'   is   not   uswl   in 


tlie  consideration  of  this  evidence 
as  planning,  organizing,  thinking 
out,  or  devising  on  the  part  ol 
defendant  an  inscription,  won.1,  or 
name  with  intention  to  deceive, 
bid  rather  the  inherent  properiies 
of  such  luime  or  de.'<criplion  are 
such  that  in  and  uf  them.seli'es  to 
the  innocently  concerned,  they  may 
confuse  or  deceive.'' 

Walter  M.  Steppacher  li-  Rro. 
V.  Karr  (1016),  236  Feti.  (1).  C.) 
l.')l.  "There  is  no  ihrect  evi- 
dence of  any  confusion  of  gotxls 
...  It  is  not  nece.s.sary  for  the 
l)laintifT  to  establisli  by  evidence 
tliat  any  person  luus  actually 
been  ileceived  by  the  imitation. 
The  cjuestion  is  whether  there  is  a 
liability  to  deception  through 
the  defendant's  use  of  the  word 
'  Mmerald.' 

""  .l//w.sAai^  Mfg.  Co.  V.  Spear 
(1^9),  2  Sandf.  .'>99;  Scrieen  v. 
.V./;7/(  (1004),  1.34  F.hI.  (C.  C.  .\.) 
366. 


460  THE    LAW   OF  MOTION   PICTURES 

injunction  against  one  who  threatens  to  compete  unfairly 
with  him.^^'' 

It  has  been  held  that  a  cause  of  action  for  unfair  com- 
petition may  be  properly  united  with  one  involving  the 
infringement  of  patent.  The  courts  take  the  position 
that  the  unfair  competition  is  an  aggravation  of  the  in- 
fringement. It  would  seem  to  follow  from  this,  that  a 
cause  of  action  in  unfair  competition  may  be  united  with 
one  involving  the  infringement  of  a  copyright."^ 

Section  127. — Marks  and  devices. 

As  in  other  trades,  the  motion  picture  producers  and 
distributors  have  adopted  distinguishing  marks,  brand- 
marks,  signs,  devices,  designs,  symbols  and  emblems  to 
identify  to  the  pubhc  more  readily  their  own  product. 
These  marks  can  be  protected  both  under  the  general 
principles  of  equity  and  by  the  state  or  Federal  statutes 
relating  to  trade-marks. 

While  the  decisions  speak  with  more  or  less  confusion 
of  trade-marks,  technical  trade-marks  and  unfair  com- 
petition, the  basic  principle  underlying  all  these  classes 
of  cases  seems  to  be  the  protection  of  the  trader  from  the 
use  of  unfair  methods.  ^'^  In  technical  trade-mark  cases, 
the  fraud  is  presumed  from  the  mere  use  of  the  same 

^"  EdiHon    Storage    Baltenj    v.  v.   Payson   (lOl.'i),  200  Fod.    (C. 

EdiHon  (1904),  07  N.  J.  Eq.  44;  C.  A.)  04. 

.55    Atl.    861;    TaeitdMicksfahrilcs  ^^'^  Amosknif}  Mainifdrtio'iiig  (^o. 

A.     Vulcan    v.     Meyers     (18!).'}),  v.  Spvar  (lS4i)),  2  Suiulf.  m\). 
139  N.  Y.  .3fi4;  34  N.  10.  904.  The  similarity  between  the  marks 

*^'*  Farmers'  Handy  Wagon  Co.  and   devices    mnst    in   general   be 

V.  Beaver  (1916),  23()  Fod.  (C.  C.  svjch   as   to   deceive   the   ordinary 

A.)  7.31;  Adams  v.  Folgcr  (lOO.'i),  j>iirrhnsfr.     For  cases  v^herc  some 

120  I''t'(l.  (('.  ('.  A.)  200;  Ltulwigh  similarity  existed  but  not  enoiujh 


MARKS    AM)    DKVK'KS 


461 


symlx)!  or  mark,'-"  while  in  tlic  otlicr  class  of  cases,  fraud 
or  a  fraudulent  intent  must  be  actually  proven  or  in- 
dicated by  the  facts.'-' 

The  tendency  at  the  jiresent  time,  however,  is  to  elimi- 
nate all  these  fine  distinctions,  and  to  view  the  offender 
in  the  broad  light  of  unfair  competition  generally. '-^ 
As  in  the  law  of  trade-names,  prior  user  gives  the  exclusive 
right.'-''  Also  the  same  rules  with  respect  to  acquiescence 
and  al)andonment  apply. 

The  registration  of  a  trade-mark  gives  no  greater  rights 
to  the  owner;  its  practical  cfTect  is  to  create  a  presumption 


to  caiuse  siich  deception  see:  II u- 
binycr  v.  Eddy  (1896),  74  Fed. 
(C.  C.)  551 ,  where  a  manufacturer 
of  istarcli  used  as  a  trade-mark  a 
liat-iruii  and  the  defendant  u.sed 
a  trade-mark  con.sLsting  of  a 
picture  of  a  colored  woman  liold- 
up  in  her  extended  arms  a  freshly 
ironed  shirt  l)osom,  underneath 
which  was  a  table  upon  whicii 
u  small  sized  flat-iron  appeared. 

Liggclt  and  Myers  Tobacco  Co. 
V.  Fiiizcr  (INSS),  12S  U.  S.  1S2; 
9  Sup.  Ct.  00,  wliere  com])lain- 
ant's  trade-mark  consisted  of  a 
star  of  tin  and  defendant's  of  a 
red  star  on  a  round  piece  of  pildcd 
l)aix>r  with  the  word  "li^;ht" 
underneath  and  other  words  re- 
ferring to  the  defendant  as  the 
manufacturer. 

' -■"  Siinnions  v.  Mansfuld  ( IS'.Ki), 
93  Tenn.  81;  23  S.  W.  105;  Lau- 


rence Mfg.  V.  Tennessee  Mfg. 
(1891),  138  U.  S.  537;  11  Sup.  Ct. 
390;  Tobacco  Co.  v.  Hyncs  (1884), 
20  Fed.  (D.  C.)  88.3;  Coffeen  v. 
lintnton  (1849),  Fed.  Cas.  (C.  C.) 
2940;  Milliuglon  v.  Fojc  (Eng.) 
(183S),  3  Mylne  &  C.  338;  John- 
ston V.  Orr-Ewing  (Eng.)  (1882),  7 
App.  ('a.s.  219;  EdeLslein  v.  Edel- 
.stein  (Eng.)  (180;i),  1  De  CJex  J. 
&  S.  185;  Manufacluring  Co.  v. 
Wilson, '.i  App.  Cas.  370. 

'-'  Hosteller  v.  Bnicggeman 
(1891),  4()  Fed.  (C.  C.)  188. 

'-'-  Denison  Mfg.  Co.  v.  Thonuis 
Mfg.  Co.  (1899),  94  Fed.  (C.  C.) 
051;  Church  &  Dwight  v.  Riisa 
(19(K)),  99  Fed.  (C.  C.)  270; 
Reymer  tt  Bros  v.  IluyUrs  (1911), 
llK)Fed.  (C.C.)83. 

'"  Ilainquc  v.  Cyclops  Iron 
Works  (1902),  130  Cal.  351; 
08  Pac.  1014. 


462  THE    LAW   OF   MOTION   PICTURES 

in  favor  of  the  owner  as  to  use  and  adoption,  relieving 
him  from  the  bm-den  of  offering  proof  of  these  facts — ^it 
is  a  prima  facie  evidence  of  ownership.  In  addition 
thereto  it  awards  treble  damages  as  against  an  infringer 
under  the  Federal  statute. ^-^ 

So  far  as  notice  is  concerned,  it  has  been  held  that 
registration  does  not  ipso  facto  constitute  either  actual 
or  constructive  notice.^-'' 

Motion  picture  producers  and  distributors  have  vied 
with  each  other  in  conceiving  original  introductions  to 
their  pictures  upon  the  screen.  Thus  they  flash  as  an 
introduction  or  interlude  to  or  between  pictures  dis- 
tinctive symbols  such  as  moving  stars,  triangles  group- 
ing themselves  in  designs,  and  other  devices  of  a  similar 
nature.  In  the  same  manner,  the  picture  is  brought  to 
a  close  by  some  hke  ingenious  method,  either  an  invisible 
hand  spelUng  out  the  name  of  the  maker  of  the  picture, 
or  a  grouping  of  figures  or  letters  in  some  form  or  com- 
bination peculiarly  distinctive. 

These  devices  are  accorded  protection  in  the  same 
manner  and  for  the  same  reasons  enumerated  above. 

Each  firm  adopts  a  peculiar  color  scheme  or  series  of 
designs  recurring  throughout  the  exhibition  of  the  motion 
picture.  These  may  be  said  to  resemble  closely  the 
wrappers  of  packagers  in  which  goods  are  put  upon  the 
market;  and  any  simulation  of  a  device,  scheme  or  design 
of  this  nature,  will  be  protected  upon  the  general  theory 
of  unfair  competition. '''''' 

'"  Sec.  Or)01,  Compiled  Statutes  Co.  (1915),  226  Fed.  (C.  C.  A.) 
of  II.  S.,  19i;i.  54.'). 

'^'' lieetatius  ('<).  v.  United  Drug  '^"Scci  in  this  coniieclioii:  Day 


TRANSFERAUU.ITV 


4(i3 


Billing  and  advertising  matter,  heralds,  clip  sheets  and 
material  of  a  similar  character  are  important  and  sig- 
nificant intlicia  upon  the  ([uestion  of  unfair  dealing  and 
carry  great  \Veight  with  the  court. 

The  use  of  letters  of  the  alphabet  has  been  held  to 
designate  grade  and  quaUty  rather  than  ownership,  and 
will  not  be  protected  as  a  trade-mark.^-' 

Section  128.— TransferabiHty. 

There  is  no  exclusive  right  to  the  title  as  such,  even 
though  it  be  originated  and  first  used  by  the  posses.sor. 
The  riglit  to  the  exclusive  use  of  the  title  exists  solely 
in  conjunction  with  the  work  with  which  it  has  become 
identified.  It  is,  therefore,  a  species  of  property  that 
V.  Webster  (1897), 23  A.  D.  (N.  Y.)      Fra7i<:aise  v.  Saratoga  Spniig  Co. 


601;  49  N.  Y.  Supp.  314.  In 
an  action  l):iso(l  upon  unfair  coni- 
jK^tition  tlie  court  said:  "It  is 
true  that  the  similarity  of 
the  alleged  wrongdoer's  label 
may  be  so  great  that  fraud  will 
be  inferred  from  a  mere  inspeo 
tion  of  the  resj)ective  labels. 
Where,  however,  the  similarity  i.s 
not  so  great  as  uix)n  a  mere  in- 
spection to  warrant  the  conclusion 
of  fraud  resort  may  l)e  and  usually 
is  had  to  evidence  nliuiulc." 

'"  .S7ej«e/Ks  V.  William  (190-1), 
127  Fed.  (('.  C.  A.)  9.50. 

On  the  (iiiestion  whet  her  geo- 
graphical luuncs  which  have  ac- 
quired a  secou-danj  meaning  will 
be   protected   sec:    La   Republiqiie 


(1903),  191  U.  S.  427;  Shaver  v. 
Hclkr  A  Herz  (1901),  lOS  Fed. 
(CCA.)  821 ;  American  Waltham 
Watch  V.  U.  S.  Watch  Co.  (1899), 
173  Ma&s.  85;  53  N.  E.  141; 
American  Clay  Mfg.  Co.  v.  Atneri- 
cnn  Clay  Mfg.  Co.  (1901),  198 
Peim.  St.  189;  47  Atl.  936; 
British-American  Tobacco  Co.  v. 
lirit.  Amer.  C.  S.  Co.  (1914), 
211  Fed.  (C.  C.  A.)  9:}.3;  HamiUon 
Shoe  Co.  V.  Wolf  (1916),  240  U.  S. 
251;  36  Sup  Ct.  269;  Pettes  v. 
American  Clock  Co.  (1«)03),  89 
A.  D.  (N.  Y.)  345;  85  X.  Y.  Supp. 
<KX);  Elgin  \at.  Watch  Co.  v. 
Illinois  Co.  (1900),  179  U.  S.  665; 
21  Sup.  Ct.  270. 


464  THE    LAW   OF   MOTION    PICTURES 

may  be  assigned  only  when  the  work  to  which  it  attaches 
is  Hkewise  assigned.  In  the  eyes  of  the  law  it  has  no 
separate  existence.  The  author  or  proprietor  of  a  literary 
product  may  not  part  with  his  rights  to  the  work,  and 
still  reserve  his  right  to  the  title  thereof  to  the  exclusion 
of  the  whole  world. 

He  may,  however,  part  with  a  portion  of  his  right  to 
the  work  and  still  keep  his  exclusive  right  to  the  title. 
Thus,  the  owner  of  a  play  may  assign  to  a  third  party 
his  motion  picture  rights  to  the  play,  and  he  may  at  the 
same  time  under  a  negative  covenant  reserve  the  right 
that  the  motion  picture  be  not  produced  under  that  title. 
In  that  event,  his  right  to  the  title  still  remains  exclusive. 
He  may  also  permit  the  licensee  to  use  the  title  for  the 
motion  picture,  and  yet  retain  his  right  to  exploit  the 
play  under  its  old  title.  In  such  case  both  he  and  his 
licensee  have  exclusive  right  to  the  title,  each  for  his 
particular  work. 

In  other  words,  as  long  as  some  right  to  the  original 
work  remains,  the  title  may  be  reserved.  \Vhen  all  rights 
in  the  work  are  sold,  the  right  to  the  title  likewise  ceases 
with  respect  to  the  original  owner,  and  passes  to  the 
assignee.  Indeed,  the  latter  may  even  enjoin  his  own 
assignor  from  the  use  of  the  title. 

Where  the  proprietor  of  the  rights  in  the  work  dies, 
the  property  in  the  work  passes  cither  by  bequest  or 
descent,  and  th^  right  to  the  title  passes  with  it  as  an 
incident  thereto.  The  title  need  not  be  specifically  be- 
(lucathed;  it  will  pass  to  the  legatee  with  the  work  itself. 

In  like  manner  tlie  right  to  the  title  passes  to  the  trustee 
in  bankruptcy  where  he  succeeds  to  the  rights  in  the  work. 


TRANSFEUAIUMTY 


4(i5 


So  also,  (lie  rights  to  a  trade-mark,  consistiiiK  <>f  a 
device,  symbol,  mark,  si^n.  hraiid-mark.  cmhlcm  or  other 
distin^uisliiiifz;  feature  may  i)e  sold  or  assigned,  but  only 
in  eonnection  with  the  business  with  whieh  it  has  beeome 
identified;  ■-'*  they  may  also  pass  by  bequest  or  descent;  '-'^ 


^"EisenMn  v.  Schiffer  (1907), 
157  Fed.  (C.  C.)  473.  Since  a 
trade-niiirk  may  not  be  sepa- 
rately a.si.><gncd  without  the  good 
will  of  the  business,  one  to  whom 
such  a.ssignnient  is  made  acquires 
no  rights  under  it;  and  where, 
after  such  assignment  the  a.ssignor 
(Hscontinues  the  use  of  the  trade- 
mark, that  is  an  abaiuioiiiiuMit, 
and  ueitlicr  one  can  enjoin  a  third 
party. 

Jacoway  v.  Young  (1915),  228 
Fed.  (C.  C.  A.)  &30.  "A  trade- 
mark has  no  efficacy  except  in 
connection  with  the  business  in 
which  it  is  used.  It  cannot  be 
assigned  separately  therefrom, 
and  ordinarily  pa.sses  with  a 
traiisf(T  of  the  business." 

"...  It  (the  trade-mark)  wius 
applied  for  and  secured  by  com- 
plainant in  connection  with  his 
business.  Hoot,  the  individual, 
going  from  complainant  to  re- 
spondent, in  the  capacity  of  a 
mere  employe,  dealing  with  goods 
and  a  business  not  his  own,  could 
not  carr>'  with  him  a  registered 
trade-mark,    nor  personal   righta 


destructive  thereof.  The  d<jc- 
trine  of  prior  u.se  does  not  apply 
in  such  a  case,  becau.se  the  ex- 
clusive right  to  the  use  of  a  trade- 
mark rests  not  on  invention,  but 
on  .such  use  as  makes  it  point  out 
the  origin  of  the  claimant's 
goods." 

Allen  V.  Walker  (1916),  235 
Vi'd.  (I).  ('.)  230.  "When  Allen 
transferred  the  business  U)  the 
corjxjration,  he  pa.ssed  title  to 
the  trade-mark,  even  if  he  did  not 
lawfully  assign  it  to  M.  E.  Allen." 

See  also:  Crossman  v.  Griggs 
(1904),  1S6  Ma.ss.  275;  71  N.  E. 
5()0;  Ki<ld  v.  Johnson  (1879),  100 
U.S.  ()17. 

^-'^  Fiiuiey's  Orchestra  v.  Fin- 
ney's Famous  Orchestra  (1910), 
161  Mich.  289;  126  N.  W.   198. 

Kxcerpl  from  hcadnote: 

"Members  of  Finney's  Or- 
chestra who,  after  the  founder's 
death,  in  accordance  with  his  will 
maintain  the  name  and  organiza- 
tion and  continue  to  carry  on 
business  as  a  musical  organiza- 
tion, have  a  right  to  the  exclusive 
use  of  the  name  and  will  l)e  pro- 


466  THE    LAW   OF   MOTION    PICTURES 

and  a  trustee  in  bankruptcy  succeeds  as  well  to  such 
trade-marks.  1^°  The  assignee  may  also  enjoin  his  assignor 
from  making  any  use  thereof.  ^^^ 

While  in  the  case  of  a  title,  the  property  right  thereto 
exists  only  with  respect  to  a  particular  piece  of  property 
and  passes  only  as  an  incident  in  conjunction  therewith, 
the  right  to  the  use  of  a  mark  or  device  is  in  the  nature 
of  the  good  will  and  assets  generally  of  a  particular  busi- 
ness. 

In  the  former  case,  the  concrete  work  is  of  the  essence 
of  the  right.  In  the  latter  case,  it  is  the  abstract  right 
to  the  use  of  the  mark  or  device  to  a  particular  class  of 
goods,  which  is  accorded  protection. 

This  distinction  is  the  more  readily  apparent  upon 
examination  of  an  old  English  case  wherein  the  title  of  a 
magazine  alone  was  put  up  and  sold  at  auction.     There 

tected     by     injunction     against  596;  Burrow  v.  Mnrceau  (1908), 

former    members    who    organize  124  A.  D.  (N.  Y.)  665;  109  N.  Y. 

a  corporation  under  the  name  of  Supp.  105. 

Finney's  Famous  Orchestra,  and  ^^"  Pepper    v.     Labrot     (ISSl), 

represent  themselves   to   be   the  8  Fed.  (C.  C.)  29. 

original  association;  the  attempt  ^^^  Russia  Cement  v.   Le  Page 

being  unfair  competition  and  a  (1888),  147  Mass.  206;  17  N.  E. 

fraud  on  the  pubhc."  304;  Celluloid  Mfg.  Co.  v.  Cellonite 

The    court    cites    Messer    v.  Co.  (1887),  32  Fed.   (C.  C.)  94; 

Fadettes   (1897),   16S  Mass.   140;  Iloxey    v.    Chanc!/    (1887),    143 

46  N.  E.  407,  in  support  of  this  Mass.  592;  10  N.  K.  713;  Jurgens 

proposition.  v.    Woodberri/    (1907),    56    Mi.sc. 

Burton  v.   Strallon   (1882),   12  (N.  Y.)  404;  106  N.  Y.  Supp.  571; 

Fed.   (C.  C.)  696;  Atlantic  Mill-  Probo.sco    v.    Bomjon    (1876),     1 

ing  Co.   V.    Robimon    (1884),   20  M<).  hY>\y  2\\;  Burton  \.  Strallon 

Fed.    (C.    C.)    217;    Morgan    v.  (1882),  12  Fed.  (C.  C.)  696. 
Rogers   (1884),   19  Fed.    (C.   C.) 


TAKTIES  407 

the  title  was  not  treated  as  tlie  title  (jf  a  literary  work 
since  it  identified  no  particular  work,  but  it  was  held  to 
designate  a  series  of  publications  issued  under  that  name, 
and  as  such  was  a  trade-mark.  As  the  title  constituted 
the  sole  valuable  asset  of  the  business,  the  sale  of  the  title 
was  equivalent  to  the  sale  of  the  entire  good  will  of  the 
business.  ■^■- 

Section  129. — Parties. 

It  is  important  to  determine  who  may  be  held  liable 
for  the  infringement  of  the  title.  We  have  the  producer, 
the  firm  that  actually  manufactures  the  picture,  the 
distributor,  who  releases  it  to  the  trade,  and  the  exhibitor, 
who  does  the  actual  Injury  by  showing  it  to  the  public. 
All  of  them  are  proper  parties  to  the  action,  and  each  is 
liable  to  account  to  the  successful  plaintiff,  and  to  pay 
him  damages.'^' 

When  the  action  is  in  e(iuity,  it  may  be  brought  against 

^'- Jiriidhuri/  v.  Divkcn.s  (lOii^;.),  odical,  and  the  right  t^)  i)ul)Iish, 

27  Beav.  oii.     Upon  a  dissolution  under   the  same  name  and   title 

of  co-partnership  the  title  of  a  any    periodical    or    other    work, 

magazine,  Iloiisciwld  Words  was,  whether  in  continuance  of  said  pe- 

hy    order    t)f    the    court    jiut   uj)  riodical  called  Household  Words, 

for  sale  at  auction  and  sold  for  or    otherwise    lus    the    purchaser 

£3,r)r)0.      "The    court   said    that  might  think  fit." 

proiM^rty  in  a  literary  periodical  llxcerpt  from  opinion  in  G.  & 

like  this  is  conlincd  purely  to  the  //.  Mfg.  Co.  v.  //«//  (1S74),  61  N. 

mere  title,  and   that  forms  part  V.  220,  and  the  princi|)le  therein 

t)f    the    partnership    a.ssets    and  stated  approved  and  applied  by 

must  he  sold  for  the  benefit  of  tlie  court. 

the    partners,    if    of    any    value.  '"  Hennessy       v.       Hcrrtnatm 

The  decHH'  ordered  the  sale  of  the  (1S9S),  89  Fed.  (C.  C.)  669. 
right  to  use  the  name  of  the  peri- 


468  THE    LAW    OF   MOTION    PICTURES 

all  of  the  infringers  at  the  same  time,  so  that  the  court 
may  in  the  one  action  grant  all  the  rehef  requisite  with 
respect  to  each  infringer.  ^^^ 

But  this  does  not  prevent  the  plaintiff  from  pursuing 
any  one  of  the  infringers  without  joining  the  others. ^'^•^ 
If  he  does  so,  however,  he  cannot  subsequently  main- 
tain separate  actions  against  the  others. 

The  courts  have  gone  so  far  as  to  hold  the  officers  and 
directors  of  a  corporation  personally  liable  to  a  plaintiff 
in  a  case  where  the  infringement  was  of  a  willful  nature.  ^^^ 
All  employes  and  agents  are  proper  parties.^" 

In  actions  at  law  the  same  rule  obtains,  since  the  action 
is  founded  on  a  tort,  and  there  is  only  one  suit  available 
to  the  plaintiff. 

Section  130. — Actions  at  law. 

We  have  been  dealing  thus  far  with  actions  where  the 
relief  sought  is  equitable  in  its  nature.  Indeed,  this  is 
the  common  and  usual  form  of  action  adopted  by  the 
trader  in  securing  speedy  and  permanent  relief. 

There  is,  however,  a  remedy  for  the  trader,  in  an  action 
at  law.  Here  the  trader  may  recover  a  sum  of  money 
by  way  of  balm  to  his  injuries.     An  action  of  this  kind 

'"./eim/t  Col.  Ass'n  v.  Solo-  (1892),  51  Fed.  (C.  C.)  296;  .4m- 

moyi  (1903),  125  Fed.  (C.  C.)  994.  strong  v.  Savnrmah  Soap   Works 

''<>Hill    V.    Lockwond    (1SS7),  (1S92),    .");i    Fed.    (C.    C.)    124; 

32  Fed.  (C.  C.)  .3S9;  A ppoUinaris  RocjcrN  v.  I ntcrnalional  Silver  Co. 

V.  Scherer  (1886),  27  Fed.  (('.  C.)  (1902),  1 18  Fed.  (C.  C.  A.)  133. 
18.  ''' Sawyer    v.    Kellogg    (1881), 

'^'^  Saxlehner  v.  Eisner  (1906),  7  Fed.  {C.  C.)  721;  (1881),  9  Fed. 

147   Fo<l.    (C.  C:.   A.)    1S9;  Cali-  (C.   C.)   601;   Roberts  v.   Skeldon 

fornia  Fig  Syrup  Co.  v.  Imp.  Co.  (1879),  8  Biss.  (C.  C.)  398. 


TUADK-MARK    IN    Tiri.K    ()l     <AUTOON 


4()0 


is  based  upon  tlio  common-law  theory  of  fraud  and  de- 
ceit.''^ 

Since  (he  basis  of  the  action  is  fraud,  it  is  necessary 
that  a  fraudulent  intent  be  actually  proved,  and  that 
some  actual  dama^o  be  established. 

It  is  hence  readily  apparent  why  an  injured  plaintiff 
prefers  to  fj;o  into  equity  for  redress  rather  than  into  law. 

Section  131. — Trade-mark  in  title  of  cartoon. 

In  a  recent  case  tlie  New^  York  Supreme  Court  held  that 
cartoons  were  to  be  treated  as  commodities  of  barter 
and  sale  and  in  like  manner  as  tangible  g(jods.  It  hekl 
that  the  title  affixed  to  such  cartoons  and  with  which 
they  had  become  identified  to  the  public,  would  be  pro- 
tected against  unfair  use  by  third  parties,  and  that  such 
titles  were  in  the  eyes  of  the  law  trade-marks. 

In  view  of  the  importance  of  this  case  because  of  the  re- 


'"  Ilngun  A  Dodd  Co.  v.  liig- 
bers  (1907),  1  CJa.  App.  100;  'u 
S.  E.  970.  "  We  have  beeu  un- 
able, however,  to  find  any  case 
holding  that  jurisdiction  of  such 
sul)j('ct-inatters  is  exclusively  witli 
a  court  of  equity;  on  the  contrary, 
we  think  the  principle  clearly 
deducihle  from  all  the  authorities 
is  that  a  |)arty  who  has  been 
injured  aiul  damaged  l)y  a  fraudu- 
lent use  of  hi.s  trade-mark,  or  by 
any  unfair  competition  in  trade, 
has  an  election  of  remedies.  He 
may  waive  this  purely  e(|uital)lc 
relief,   such    a.s    accouiitin);;,   dis- 


covery, injunction,  etc.,  and  sue 
at  law  for  the  damages  that  he  ha.s 
sutTered  a.s  the  result  of  such  un- 
lawful and  unfair  conduct." 

Edclslein  v.  Edchlein  (Eng.) 
(1S(W),  1  De  G.  J.  &  S.  185; 
Hodgeiii  V.  Nowill  (Eng.)  (1853), 
()  Hare,  325;  Day  v.  Woodworth 
(1851),  13  How.  363;  Warner  v. 
RiH-hr  (1.S.S4),  Vvi\.  Cas.  (C.  C.) 
No.  171S9.\;  Ia'  Page  Co.  v.  Russia 
Cement  (1892),  51  Fed.  (C.  V. 
A.)  041;  SoiUhern  v.  How  (Eng.) 
(1618),  2  Popham,  144;  Thcdford 
Medicine  Co.  v.  Curnj  (1895),  96 
(Ja.  89. 


470 


THE    LAW    OF   MOTION    PICTURES 


cent  development  in  the  making  of  animated  cartoons, 
the  opinion  in  its  entirety  is  given  below.  ^'^^ 

of  the  speakers.  Mr.  Fisher  began 
this  series  of  cartoons  on  No- 
vember 15, 1907,  in  the  San  Fran- 
cisco Chronicle  with  the  charac- 


^^^  Star  Company  v.  Wheeler 
Syndicate  (1916),  N.  Y.  Law 
Journal,  August  15,  Greenbaum, 

J: 

"  The  controversy  in  this  action 
has  narrowed  itself  to  the  inquiry 
whether  the  plaintiff,  the  Star 
Company,  has  acquired  a  trade- 
mark in  the  words  "Mutt  and 
Jeff"  as  a  title  to  a  series  of  car- 
toons pubUshed  in  its  paper 
known  as  the  American;  The 
controlling  facts  upon  which  the 
rights  of  the  parties  depend  are 
practically  undisputed.  Harry  C. 
Fisher,  known  by  the  nom  de 
plume  of  "Bud  Fisher,"  was  con- 
cededly  the  creator  of  two  gro- 
tesque figures  which  he  named 
"Mutt  and  Jeff,"  respectively, 
and  which  he  utilized  in  a  series 
of  cartoons,  each  publication 
being  in  the  form  of  what  in 
newspaper  parlance  is  called  a 
"comic  strip."  Each  strip  con- 
sisted of  four  or  more  pictures 
in  which  the  chief  characters, 
"Mutt  and  Jeff,"  were  delin- 
eated in  various  attitudes  and 
situations  and  were  represeiit(Ml 
a.s  exchanging  views  on  a  variety 
of  topics,  the  words  of  the  dialogue 
being  printed  in  a  halloon-sliaijcd 
bcnjll    eniunating    from    the    lips 


ter  of  "Mutt."  Commencing  on 
December  11,  1907,  he  continued 
the  publication  of  these  cartoons 
in  the  San  Francisco  Examiner 
until  April  9,  1909.  During  this 
period  and  as  early  as  March 
and  April,  1908,  which  was  prior 
to  the  time  he  entered  in  plain- 
tiff's employ,  he  introduced  the 
figure  "Jeff"  in  his  comic  strip, 
and  the  cartoons  became  known 
to  the  public  as  "Mutt  and  Jeff," 
although  these  words  had  not 
formally  appeared  in  the  headings 
of  the  pictures.  He  started  on 
the  Chronicle  with  a  weekly 
salary  of  $15,  which  he  shortly 
after  increased  to  $27.50.  When 
he  entered  into  the  employ  of 
the  Examiner  his  salary  became 
$50  a  week,  sul)sequently  in- 
creased to  $00,  anil  then  to  $75. 
In  February,  1909,  he  made  a 
three-year  contract  with  the  Ex- 
aminer, which  was  owned  or 
controlled  by  William  H.  Hearst, 
the  virtual  owner  of  tlic  ,\cir  York 
American  and  otlicr  newspapers. 
In  May,  1909,  lie  came  to  New 
York    City   and    prepared   daily 


TRADE-MAKK    IN    TITI.K    OK    CAlCrOON 


471 


T.^pon  rcarp;iimci)t  of  tho  rase  tlio  court  went  ono  step 
furtlicr,  and  licld  thai  it  would  enjoin  not  only  the  use  of 

cnrtoons  for  tho  American  until 


AuKWst,  1910,  when  a  new  coii- 
tiact  was  made  with  the  plaintiff 
for  a  term  of  five  years  at  a  salary 
of  S20()  ii  week  for  the  first  year; 
S2')0  diniiit;  the  second,  third 
and  fourth  years,  and  $300  a 
week  during  the  fifth  year.  Tlie 
contracts  of  February,  1909,  and 
August,  1910,  provided  for  Fish- 
er's exclusive  services  at  a  weekly 
salary  on  "publications  and  news- 
paper enterprises  in  which  Wil- 
liam R.  Hearst  is  or  may  be  in- 
terested." One  of  these  enter- 
prises was  and  is  known  as  tlie 
International  News  Service.  Dur- 
ing substantially  the  entire  period 
of  thes(!  contracts  Fisher's  car- 
toons aj)peared  daily  in  the  Hearst 
publications  and  in  other  publica- 
tions under  agreements  made 
with  the  International  News 
Ser\'ice.  The  first  time  that  the 
words  "Mutt  and  Jeff"  were 
employed  in  the  caption  of  the 
cartoons  was  under  date  of 
November  20,  1909,  as  follows: 
"Mutt  and  JelT  do  a  Little  Ticket 
Scalping  at  the  Big  Game — by 
'Hud'  Fisher."  As  a  matter  of 
fact  Fisher  himself  prepared  the 
titles  or  headings  to  the  cartoons, 
and    they    were    uniformly    pub- 


lishe<l  as  prepared  by  liim  until 
December  11,  1914,  when  the 
words  "Mutt  and  JefT  "  were 
printed  for  the  first  time  as  the 
heading  of  the  Fisher  comic 
strip,  reading  as  follows:  "Mutt 
and  Jeff— The  Little  Fellow  Also 
knows  some  Law  and  Proves 
it."  This  heading  was  published 
without  the  knowledge  of  Mr. 
Fisher,  who  promptly  protested 
against  its  use,  with  the  result 
that  the  succeeding  publications 
contained  only  headings  or  titles 
as  prepared  by  Fisher  in  accord- 
ance with  previous  practice.  It 
may  here  be  observed  that  at 
about  this  time  ineffectual  ne- 
g(jtiations  had  been  in  progress 
for  plaintiff's  renewal  of  the 
Fisher  contract,  and  in  December, 
1914,  Mr.  Fisher  had  concludetl 
a  contract  with  the  Wheeler 
Syndicate  to  commence  upon 
the  expiration  of  the  term  of  the 
subsisting  agreement  with  plain- 
tiff, and  it  was  therein  provideil 
that  lie  W!is  to  receive  a  minimum 
of  SI, 000  wwkly  for  his  "Mutt 
and  Jeff"  cartoons.  On  January 
19,  1915,  and  down  to  the  end 
of  that  month  the  American 
again  publishe<l  the  Fisher  car- 
toons with  the  title  "Mutt  and 


472 


THE    LAW   OF   MOTION    PICTURES 


the  title  with  respect  to  cartoons,  but  would  enjoin  as  well, 
the  publication  of  cartoons  drawn  in  imitation  of  those 


Jeff— by  'Bud'  Fisher."  When 
these  titles  appeared  Mr.  Fisher 
again  protested  against  their  use, 
and  upon  the  plaintiff's  failure 
to  discontinue  them  he  ceased 
furnishing  any  further  drawings 
for  the  plaintiff.  It  may  further 
be  noticed  that  the  plaintiff  at 
times  during  the  term  of  its  con- 
tract with  Fisher  extensively 
advertised  that  "Mutt  and  Jeff 
will  appear  in  the  New  York 
American  daily."  These  adver- 
tisements were  printed  in  its 
Sunday  editions  and  also  on 
cards  in  subway  and  elevated  sta- 
tions, on  billboards,  newsstands 
and  upon  plaintiff's  newspaper 
delivery  wagons.  Broadly  stated, 
the  contention  of  the  plaintiff  is 
that,  being  the  first  one  to  use 
the  title  "Mutt  and  Jeff"  in 
connection  with  its  comic  series, 
it  is  entitled  to  the  exclusive  right 
to  the  use  of  such  title  as  a  trade- 
mark or  trade  name.  It  doubtless 
is  the  law  that  the  exclusive  right 
to  a  trade-mark  does  not  belong 
U)  the  one  who  suggested  or  in- 
vented it,  but  to  the  party  who 
was  the  first  to  appropriate  and 
use  it  in  his  business  and  give  it  a 
name  and  reputation.  Caxwvll 
V.   Umnrd,   121    N.   Y.   4!)4;   Co- 


lumbia Mill  Co.  V.  Akon,  150  U.  S. 
460,  463;  28  Am.  &  Eng.  Enc.  of 
Law,  pp.  393,  394,  2d  ed.  The 
plaintiff  insists  that  the  facts  of 
this  case  bring  it  within  the  de- 
cision in  Herald  Co.  v.  Star  Co., 
146  Fed.  Rep.  204,  aff'd  by  Cir- 
cuit Court  of  Appeals,  146  Fed. 
Rep.  1023,  and  OutcauU  v. 
A^  Y.  Herald,  146  Fed.  205,  popu- 
larly known  as  the  "Buster 
Brown"  case.  While  the  facts 
in  the  "Buster  Brown"  case  are 
quite  analogous  in  some  features 
to  those  here  appearing,  yet 
they  may  be  differentiated  in 
material  respects.  In  the  "  Buster 
Brown"  case  the  court  found  as  a 
fact  that  the  Neiv  York  Herald 
was  the  first  to  use  the  words 
"Buster  Brown"  as  the  "title 
of  a  comic  section"  of  its  news- 
paper. In  the  case  at  bar  the 
plaintiff  had  i)ul)lished  the  car- 
toons for  about  five  years  with- 
out the  title  of  "Mutt  and  Jeff" 
and  the  only  titles  employed 
were  those  prepared  by  Fisher, 
which  varied  from  day  to  day, 
the  cai)tions  being  appropriate 
to  the  sul)je(!t-matter  of  the  given 
strip.  In  the  "Buster  lirown" 
eas(!  it  appeared  that  the  New 
York  Ihrnld  had   used  the  title 


TRADE-MARK    IN    'I'm.K    Oi     CARTOON 


47:? 


for  a  number  of  yoars  ns  a  hoading 
to  a  comic  section  of  its  paper. 
In  the  ciuse  at  bar  no  such  situa- 
tion existed.  Under  all  the  cir- 
cumstances here  ap|x^arin>j;  it 
may  not  bo  fairly  held  that  the 
j)laiiitilT  had  actually  used  "Mutt 
and  .Ie(T"  as  a  title  of  Fisher's 
comic  strips,  even  if  it  be  a,ssumed 
that  a  strip  may  be  regarded  as  a 
comic  section  of  the  pajwr.  The 
fact  is  that  during  the  entire 
period  of  its  contract  with  Mr. 
Fisher  plaintiff  published  these 
strips  without  any  title  of  its 
own.  The  mere  circumstance 
that  in  its  adverti.sements  the 
cartoons  were  referred  to  in  con- 
nection with  the  words  "  Mutt  and 
Jeff"  is  of  no  special  significance, 
since  it  is  also  the  fact  that  since 
September  22,  1910,  Fisher  pub- 
lished upwards  of  300,000  copies 
of  his  books  of  cartoons  selectetl 
from  those  which  had  appeared 
in  the  Anicriain  under  the  title 
of  "The  Mutt  and  Jeff  Cartoons 
l)y  Bud  Fisher."  It  is  thus  evi- 
dent that  the  plaintiff  was  not 
the  first  user  of  the  words  "Mutt 
and  Jeff"  lus  a  title  or  trade-mark, 
and  that  these  words  had  not 
been  apjjropriated  by  it  lus  a 
trade-mark  or  trade  name  to 
designate  its  comic  section  or  a 
portion  thereof,  except  u{)on  the 
few  occasions  during  the  expiring 


months  of  the  ugreeinent'^,  aftei 
the  plaintiff  realizetl  that  a  re- 
newal of  th(^  Fisher  contract 
was  out  of  the  (juestion.  It  is 
clear  that  this  is  not  a  ciuse  where 
the  plaintiff  had  Ixkju  in  the  habit 
of  labeling  its  comic  strips  with 
a  distinctive  mark,  or  where  it 
may  be  fairly  said  that  it  had 
acquired  by  user  the  words  "  Mutt 
and  Jeff"  as  against  Fisher. 
Nor  is  this  a  case  where  it  may  Ix; 
held  that  the  plaintiff,  l)eing 
entitled  to  the  exclusive  services 
of  Fisher  in  the  drawing  of  the 
cartoons  in  (juestion,  Ijecame  en- 
titled to  the  use  of  the  title  "  Mutt 
and  Jeff"  since  those  words  origi- 
nati'd  with  FLsher  before  he  en- 
tered in  the  employ  of  plaintiff 
and  the  cartoons  had  akeatly 
accjuired  a  reputation  as  "Mutt 
and  Jeff"  cartoons.  The  facts 
in  this  case,  too,  are  different 
from  these  appearing  in  Jaeger's 
Co.  V.  Le  lioutillirr,  47  Hun,  ')21, 
where  it  wjus  shown  that  Profc-vsor 
Jaeger  had  never  l)een  engagetl 
in  the  business  of  selling  goods 
and  therefore  had  never  acquirtnl 
any  j)roprietary  right  in  a  tratie- 
mark.  On  the  other  hand,  the 
facts  established  in  this  cjuse  are, 
that  Fisher  was  most  actively 
engaged  for  some  time  prior  to 
his  employment  with  plaintiff 
in  producing  the  cartoons  with 


474 


THE    LAW   OF   MOTION    PICTURES 


"Mutt     and     Jeff"     characters. 
These  cartoons,  in  effect  the  prod- 
ucts of  Fisher's  hand  and  brain, 
are  to  be  treated  as  a  commodity 
of  barter  and  sale,  the  same  as 
tangible    goods    or    merchandise 
which  may  be  sold  under  a  dis- 
tinctive mark  or  name  which  the 
vendor  may  exclusively  use  as  a 
trade-mark  or  trade  name  in  the 
sale  of  such  goods.     The  mere 
circumstance  that  for  a  period  of 
time    Fisher    obligated    himself 
to  produce  his  cartoons  exclusively 
for  the  plaintiff  no  more  deprived 
him  of  the  exclusive  right  to  use 
the  trade-mark  or  trade  name  of 
his    productions    than    would    a 
manufacturer  of  goods  known  by 
a  trade  name  be  deprived  of  the 
exclusive    right    to    such    trade 
name,    because    he    had    agreed 
for  a  definite  time  to  manufac- 
ture   them     exclusively     for    a 
given   firm.      Of   course,   during 
the     time     when     Fisher     was 
obliged   to   furnish   his    cartoons 
exclusively  to  the  plaintiff,  the 
latter  had  the  exclusive  right  to 
the  use  of  the  trade  name  which 
went  witli  tlio  exclusive  right  to 
all  of  Fisher's  output;  but  when 
the   contract   terminated    Fisher 
was  at  liberty  to  sell  this  outjHit 
to  whomsoever  he  wished.     I'lu; 
law  of  the  ca-se  is  so  well  con- 
sidered  in   Hanover   Milling   Co. 


v.  Metcalf,  240  U.  S.  403  et  seq. 
that  citation  of  further  authori- 
ties would  be  superfluous.  In 
the  opinion  of  the  court  the 
plaintiff  is  not  entitled  to  the 
use  of  the  trade  name  6r  trade- 
mark "Mutt  and  Jeff,"  the  right 
thereto  being  now  vested  in  the 
Wheeler  Syndicate  under  its  sub- 
sisting contract  with  Fisher,  sub- 
ject to  such  rights,  if  any,  re- 
served therein  to  Fisher.  There 
must  be  a  decree  in  favor  of  de- 
fendant. 

Fisher  v.  Star  Co.  For  the 
reasons  stated  in  the  opinion 
filed  in  Star  Co.  v.  Wheeler  Syn- 
dicate, a  decree  will  be  entered  in 
favor  of  plaintiff. 

Wheeler  Syndicate  v.  Star  Co. 
Upon  the  opinion  filed  this  day  in 
Star  Co.  V.  Wheeler  Syndicate, 
a  decree  will  be  entered  in  favor 
of  plaintiff." 

See  also  opinion  of  Weeks,  J., 
in  denying  the  motion  for  an  in- 
junction pendente  made  by  the 
Star  Company  in  its  action  against 
the  Wheeler  Syndicate,  reported 
in  (1915),  <)1  Misc.  (N.  Y.)  040. 

t^ee  also:  0  idea  id  f  v.  New  York 
Herald  {m)i\),  MO  Fed.  {C.  C.) 
205.  "The  contention  of  com- 
j)lainant  is  that  it  is  unfair  com- 
petition in  trade  for  any  one  else 
1(»  draw  or  offer  for  sale  any  other 
pictures  in   wliich,  although  the 


TRADE-MARK    IN    TITI.K    OF    TARTOOV 


put  out  by  tho  cartoonist  who  was  tlic  pnjprictor  of  flio 
title. '^° 


scenes  and  incidents  are  different, 

some  of  the  cliiiractcrs  are  iiiii- 
tjitioiis  of  those  which  upix'arcnl 
in  the  earlier  pictures  which  com- 
l)lainant  sold  to  defendant.  In 
other  words,  that  dep<3nent.  al- 
thou^li  lie  never  copyrighted 
thcin  and  did  not  acquire  any 
right  to  the  title  in  connection 
with  newspa|)er  publication,  has, 
nevertheless,  some  common-law 
title  to  individual  figures  therein 
displayed,  which  he  can  maintain 
to  tlie  exclusion  of  others,  who 
depict  them  in  other  scenes  and 
situations.  It  is  sufficient  to  .say 
that  no  authority  is  cited  sup- 
jiorting  this  i)roposition,  which 
.seems  entirely  novel  and  does  not 
commend  itself  as  sound." 

See  also:  AVic  York  Ilerakl  v. 
Star  Co.  (1906),  146  Fed.  (C.  C.) 
204;  aff'd  146  Fed.  (C.  C.  A.) 
1023.  Tem|)orary  injunction  wa.s 
issued  enjoining  defendant  from 
using  title  "Buster  Brown"  in 
such  a  manner  a.s  to  lead  the 
pul)lic  to  believe  that  it  contem- 
plated the  puitlication  of  a  comii; 
section  under  that  title. 

See  also:  X.  Y.  Herald  v.  OtUum 
Citizen  (Can.),  41  Can.  S.  C.  R. 
22!).  ]{egist  ration  of  a  title 
"Buster  Brown"  for  the  comic 


section  of  a  newspaper  was  held 
invalid. 

'♦"  Fislicr  v.  Sl(ir  Compani/ 
(1917), N.  Y.  Law  Journal,  Jan. 20. 
"  The  only  question  reserved  by 
the  court  for  determination  was 
whether  the  defendant  is  to  l>e 
enjoined  from  liereAfter  publishing 
cartoons  drawn  in  imitation  of 
Mr.  Fisher's  creations,  "Mutt 
and  JefT."  It  seems  to  me  that, 
viewing  this  (juestion  from  a 
stand|xjint  of  unfair  competition, 
there  should  be  but  one  answer 
thereto,  and  that  is  that  the  pub- 
lication of  such  cartoons  would 
be  calculated  to  deceive  the  public 
into  believing  that  they  were  the 
genuine  productions  of  Mr. 
Fisher.  The  cases  that  recognize 
these  principles  as  applied  to 
ordinary  merchandi.se  are  fully 
stated  in  such  cases  as  Hanover 
Milling  Co.  v.  Melcalf,  240  U.  S. 
40.3;  E.  P.  DiUlon  A  Co.  v.  Cup- 
7>/<.s,  117  .\pp.  Div.  172,  and 
Yak  ct-  Toirne  Mfg.  Co.  v.  .{dler, 
154  Fed.  Rep.  37.  I  can  find  no 
dilTerence  in  principle  betw(M'n 
that  class  of  ca.ses  and  the  one 
under  review  excepting  that  it  is 
here  sought  to  protect  an  in- 
dividual j)ossessed  of  sjM'cial  skill 
in  the  production  of  cartoons  of 


476 


THE    LAW    OF   MOTION    PICTURES 


his  own  creation.  My  attention 
has  been  called  to  the  opinion 
written  by  the  examiner  of  inter- 
ferences upon  an  application  of 
the  defendant  for  cancellation  of 
the  trade-mark  "Mutt  and  Jeff" 
registered  by  the  plaintiff  Fisher 
as  a  trade-mark  for  a  series  of  car- 
toons. The  examiner  refers  to 
recent  works  on  trade-marks  in 
which  the  distinction  is  observed 
between  a  personal  and  imper- 
sonal trade-mark.  Special  refer- 
ence is  made  to  Paul  on  Trade- 
Marks  and  the  English  work  of 
Sebastian  (4th  ed.,  p.  100),  con- 
cerning which  the  examiner 
states  that  a  "personal  trade- 
mark is  discussed  at  some  length 
with  the  citation  of  authorities 
and  is  referred  to  as  a  mark  which 


benefits  the  article  to  which  it 
is  attached  with  the  personal 
skill  or  supervision  of  an  individ- 
ual." I  can  see  no  reason  on  prin- 
ciple why  such  a  trade-mark 
should  not  be  recognized  as  the 
property  of  Fisher  in  this  case. 
In  passing  upon  the  voluminous 
findings  submitted  by  the  de- 
fendant I  desire  to  observe  that 
because  reference  is  made  to 
certain  copyrights  in  the  plain- 
tiff's findings  there  is  no  implica- 
tion that  this  court  is  disposing 
of  this  case  upon  the  theory 
that  a  copyright  is  involved. 
The  facts  with  reference  to  the 
copyright  are  merely  incidental 
in  the  determination  of  the  ulti- 
mate questions  presented." 


CHAPTER  XI 

UNFAIR   COMPETITION    (CONTINUED) 

Miscellaneous  Matters 

Sec.  132.  Right  to  u.se  or  lus.sign  one's  own  uume. 
133.  Limitations  on  u.se — price  fixing. 
1.34.  Restraint  of  trade. 

Section  132. — The  right  to  use  or  assign  one's  own  name. 

It  is  well  settled  that  every  individual  has  a  riglit  to 
use  his  own  name  in  connection  with  his  business.  He 
may  not,  however,  use  the  name  in  a  manner  so  as  to  lead 
the  public  .to  believe  that  his  goods  are  those  of  some 
person  l)caring  the  same  name.' 

While  many   forms  of    business  enterprises  are   con- 


H'remn  Co.  v.  KelU-r  (ISOS), 
85  Fed.  (C.  C.)  643;  CImpman  v. 
Waterman  (1917),  N.  Y.  Api). 
Div.,  N.  Y.  Law  Journal,  Apr.  4; 
Rogers  v.  Rogers  (1895),  70  Fed. 
(C.  C.  A.)  1017;  Devlin  v.  Dci-lin 
(1877),  69  N.  Y.  212;  Frazer  v. 
Frazer  (1887),  121  111.  147;  13 
N.  E.  6.39;  Lamlrclh  v.  Landreth 
(1884),  22  P^ed.  (C.  C.)  41. 

Howard  v.  LokU,  Michigan 
Circuit  Ct.,  Wayne  County,  Feb. 
24,  1916.    Trade-Mark  Reporter, 


Vol.  6,  p.  229.  Plaintiff  \va.s 
grantwl  an  injunction  re.-^training 
the  use  of  the  word  "Mercedes" 
as  the  title  of  a  vaudeville  act 
u|X)n  the  ground  that  plaintiff 
had  first  used  tliat  title  with  re- 
s|)ect  to  a  vaudeville  act.  The 
injunction  wjus  granted  notwith- 
standing that  one  of  the  defcnil- 
ant's  middle  name  was  Mercedes 
antl  that  the  act  was  named 
after  such  defendant. 


:/  / 


478  THE    LAW   OF   MOTION    PICTURES 

stantly  changing  hands  under  their  original  names,  it  is 
well  to  bear  in  mind  that  there  are  limitations  upon  this 
right  which  are  peculiarly  applicable  to  the  motion  pic- 
ture industry. 

Some  of  the  foremost  companies  in  the  industry  have 
adopted  as  the  corporate  title  the  name  of  some  prom- 
inent director  or  producer  whose  work  is  devoted  to  the 
productions  of  that  company.  Should  the  company 
later  dispense  with  the  services  of  that  particular  individ- 
ual, or  should  the  original  interests  attempt  to  withdraw 
or  sell  out,  the  question  arises,  how  far  may  this  be  legally 
done? 

It  has  been  held  that  where  the  value  of  a  trade  name 
is  dependent  upon  the  personal  reputation,  skill,  experi- 
ence of  and  is  indissolubly  connected  or  associated  with 
the  owner,  it  cannot  be  assigned,  for  that  would  efifect 
a  fraud  upon  the  public.^    This  rule  has  been  applied  to 

"^  Messer  \.  The  Fadettes  (1897),  not  assignable.  .  .  .  The  case 
168  Mass.  140;  46  N.  E.  407.  is  not  like  those  in  which  there  is 
The  leader  of  an  orchestra  at-  a  sale  f)f  fixed  property  and  a 
tempted  to  sell  all  her  right,  title  local  business  to  which  the  name 
;ind  interest  in  and  to  a  musical  belongs  and  whose  principal  fea- 
organization  or  orchestra  together  tures  remain  unchanged  after 
with  the  name  by  which  it  was  the  sale.  If  the  use  by  the  i)lain- 
designated,  the  "Fadette  Ladies  tiff  of  the  name  'Fadette  Ladies 
Orchestra."  Said  the  coiu't:  "So  Orchestra'  would  have  any  in- 
far  as  lOthel  Atwood  (the  assignor)  fluence  beneficial  to  herself  upon 
li.id  any  right  or  ownership  in  the  public  who  wished  to  procure 
the  trad('-nam(!  which  designated  the  services  of  such  an  organiza- 
the  organization  under  her  man-  tion,  it  would  be  only  to  misl(>ad 
agemcnt,  it  was  j)ersonal  to  her-  and  defraud  them  by  implying 
.s(;lf,  (l(!pending  upon  her  personal  that  .she  and  such  mu.sicians  as 
reputation  and  skill,  and  it  was  she  employed  were  the  same  jxjr- 


THE    UHill'l'    TO    ISK    OH    ASSIGN    ONK's    OWN    NAME        471) 

artists,  authors,  musicians,  and  lawyers;  and  they  will  ncjl 
he  permitted  to  assign  to  others  the  use  of  their  own 
names. -^    That  limitation  exists  even  where  a  corporation 


sons  \vlii»  liad  formerly  gained  a 
Rood  reputation  under  tliis  niune. 
It  is  well  settled  that  the  eourts 
will  not  enforce  a  claim  of  this 
kind,  which  contains  a  misrei>- 
rasentation  to  the  public." 

llc'itnian  v.  Ihcjvmnn  (ISSO), 
8  Daly  (N.  Y.),  1,  holds  certain 
kinds  of  names  non-assignable. 
"When,  however,  the  whole  pe- 
cuniary value  of  a  name  ...  is 
tlcrivcd  solely  fnjin  the  personal 
qualities  of  the  one  to  whom  the 
name  belongs,  such  as  his  .skill, 
sjx*cial  knowledge  and  exiK'rience, 
or  from  the  fact  that  the  article 
is  produced  under  his  personal 
sujK'rvisicai,  which  imparts  to  it 
a  siKH'ial  value,  then  the  right 
to  the  name  is  not  transmissible." 
Lcal/ur  Cloth  Co.  v.  Am.  lAoilur 
a.  Co.  (Eng.),  11  II.  L.  Cas.  523; 
Kidd  V.  Johmun  (1S71)),  100  U.  S. 
017;  Dixon  Crucible  Co.  v.  Gufj- 
gaihcim,  2  Brewster,  '.V2l. 

Hughes  V.  Slalhain  (l-^ng.) 
(1825),  4  Barnewell  &  Cres.swell, 
187.  An  agretMiient  between 
two  attorneys  whicli  iHovidcd 
for  the  transfer  of  the  business 
besides  the  use  of  the  name  was 
held  invalid  in  so  far  as  the  name 


was  concerned.  Sec  also:  Dean 
V.  Emerson  (1809),  102  Mass. 
480;  Iloxie  v.  C honey  (1887),  143 
Mass.  592;  10  N.  E.  713.  In  re 
Swczey  (1881),  62  Howard's  Pr. 
(N.  Y.)  215;  Skinner  v.  Oake^'i 
(1881),  10  Mo.  App.  45. 

'  Blakely  v.  Sowia  (1900),  197 
Pa.  305;  47  Atl.  286.  Plaintiff's 
intestate  had  contracted  with 
defendant,  the  leader  of  a  band, 
whereby  he  was  to  act  in  the 
general  capacity  of  a  business 
manager.  Four  years  later  plain- 
tiff died. 

Held  that  there  was  the  rela- 
tion of  employer  and  employe, 
which  terminated  at  death.  That 
each  party  relieil  to  a  great  extent 
upon  the  purely  |)ei-sonal  cjuali- 
tications  of  the  other,  and  for 
that  reason  the  contract  was  not 
a.ssignlble,  even  though  the  plain- 
tilT's  intestate  had  been  given  the 
right  to  a.s.sign  the  contract  to  a 
cor|M)ration. 

Hi  Id  also  that  one  could  not 
assign  to  another  the  use  of  his 
oirn  name,  as  that  was  contrary 
to  public  |x)licy,  in  the  case  of  an 
artist,  an  author,  musician  or 
lawver,  as  the  value  of  such  a 


480 


THE    LAW    OF    MOTION    PICTURES 


has  been  formed  to  take  over  the  use  of  the  name,  for 
even  in  that  case  assignability  is  not  permitted."^ 

In  New  York,  a  defendant  who,  as  executor,  had  ac- 
quired the  right  to  the  use  of  a  surname  which  was  the 
same  as  his  own,  conveyed  the  business  together  with 
the  trade  name  to  another.  He,  thereafter  in  his  indi- 
vidual capacity,  attempted  to  grant  to  a  third  party  the 
right  to  the  use  of  his  own  name  in  connection  with  a  sim- 
ilar business.     The  court  enjoined  him.^ 


name  was  entirely  dependent 
upon  the  personal  reputation, 
skill,  experience  and  indissolubly 
connected  or  associated  with  the 
owner. 

But  this  rule  was  not  followed 
in  the  older  New  York  cases. 

See:  Christy  v.  Murphy  (1856), 
12  How,  Pr.  (N.  Y.)  77. 

See  also:  Booth  v.  Jarrett  (1876), 
52  How.  169.  Lessor's  name  was 
on  theatre  ("Booth's  Theatre"); 
lessee  was  held  entitled  to  use 
name  on  theatre  since  the  name 
was  identified  with  the  goods 
sold — the  theatre.  •' 

'Blakely  v.  Sousa  (1900),  197 
Pa.  305;  47  Atl.  286. 

Skinner  v.  Oaken  (1881),  10 
Mo.  App.  45.  "We  think  the 
answer  to  this  cjucstion  depends 
upon  the  effect  which  the  use  of 
the  name  in  each  particular 
instance  is  shown  to  have  upon 
the  minds  of  the  public.     If  it 


leads  the  public  to  beUeve  the 
particular  goods  are  in  fact  made 
by  the  person  whose  name  is  thus 
stamped  upon  them,  or  in  whose 
name  they  are  advertised,  where- 
as they  are  in  fact  made  by  an- 
other person,  then  such  a  use  of 
the  name  will  not  be  protected 
by  the  courts,  for  to  do  so  would 
be  to  protect  the  perpetration 
of  a  fraud  upon  the  i)eople.  See 
also:  Oakes  v.  Tonsinierre  (1883), 
49  Fed.   (C.  C.)  447. 

^Burrow  v.  Marceau  (1908), 
124  A.  D.  (N.  Y.)  665;  109  N.  Y. 
Supp.  105.  "Each  case  must 
depend  upon  its  own  facts,  but 
where  it  ♦is  clearly  established 
that  an  attempt  is  being  made 
l)y  one  person  to  got  the  business 
of  another  by  any  means  that  in- 
volves fraud  or  deceit,  a  court 
of  ('(juity  will  protect  the  honest 
trader  and  ri'strain  adishonost  one 
from  carrying  out  his  s(;heme." 


LIMITATIONS   ON    USE — PRICE    FIXING  481 

Section  133. — Limitations  on  use — price  fixing. 

The  fundamental  distinction  between  the  rights  de- 
rived under  the  copyright  and  patent  hiws  is  that  in  the 
former  there  is  granted  the  exclusive  right  to  print,  i)ub- 
lish  and  vend/'  while  in  the  latter  the  exclusive  right  is 
given  to  make,  itse  or  vend  the  patented  article.  In  other 
words,  the  right  granted  under  the  i)atent  law  which  is 
not  given  to  the  co])yright  proprietor  is  the  sole  right 
to  use.^ 

This  means,  in  efTcct,  that  the  owner  of  a  patent  may 
attach  any  and  all  conditions  with  respect  to  the  use  of 
his  i)atented  article,  and  those  conditions  are  binding 
upon  ail  persons  into  whose  possession  the  patented 
article  may  come.  This  is  a  right  irrespective  of  any 
contract,  and  attaches  to  the  patented  commodity  in  a 
manner  which  may  best  be  described  as  a  "covenant 
running  with  the  land."  ^ 

In  copyright,  on  the  other  hand,  the  sole  right  to  use 
is  not  granted  to  the  proprietor  of  the  work.  Hence,  any 
limitation  in  the  use  of  the  work,  must  be  sought  for  in 
some  contract,  and  only  parties  privy  to  the  contract 
are  bound  by  such  limitations. 

The  "vending"  rights  in  both  patent  and  copyright 

Kurtzmann       v.       Kurtzmann  *  Section  one  of  the  Copyright 

(1914),  S4  Misc.  (X.  Y.)  47S;  117  .Vet  of  1<)09. 

N.    Y.   Supp.    673.     The   use   nf  •  Sort  ion    1)42.S    of    the    Coni- 

one's  own  name   may  in  certain  piled  Statutes  lOU),  p.  10031. 

cases  be  restrained.  *  Hhomer  v.  McQuewan  (1852), 

Soo  also:  Ifomeikr  v.   Ifornrikr,  11  How.  545);  }fitrh€U  v.  Ilnirley 

Trade-Mark  Rep.  (1917),  Vol.  7.  (1.S72),  10  Wallace,  544;  Adanwi 

p.  360.  V.  Burke  (1873),  17  Wallace,  453. 


482  THE    L.\W   OF   MOTION    PICTURES 

are  identical.  In  neither  case  may  the  proprietor  restrict 
the  selUng  price  of  the  article  of  one  who  is  not  a  party 
to  a  contract  with  him. 

This  distinction  is  emphasized  clearly  in  the  "Sana- 
togen"  case.^  The  restriction  placed  upon  each  package 
was  in  the  form  of  a  notice  reading  as  follows: 

"Notice  to  the  Retailer 

''This  size  package  df  Sanatogen  is  licensed  by  us  for 
sale  and  use  at  a  price  not  less  than  One  dollar  ($1.00). 
Any  sale  in  violation  of  this  condition,  or  use  when  so 
sold,  will  constitute  an  infringement  of  our  patent  No. 
601,995,  under  which  Sanatogen  is  manufactured,  and 
all  persons  so  selling  or  using  packages  or  contents  will 
be  liable  to  injunction  and  damages." 

"A  purchase  is  an  acceptance  of  this  condition.  All 
rights  revert  to  the  undersigned  in  the  event  of  violation. 

"The  Bauer  Chemical  Co." 

The  court  held  that  this  limitation  placed  upon  the 
patented  article  was  not  with  respect  to  its  use,  but  re- 
lated to  its  sale  merely,  and,  as  such,  was  unenforcible  in 
the  absence  of  any  special  contract  between  the  parties 
to  the  action. 

The  court  aptly  states  its  position:  "The  real  (jucstion 
is  whether  in  the  exclusive  right  secured  by  statute  to 
'vend'  a  patented  article,  there  is  included  the  right, 
by  notice,  to  dictate  the  price  at  which  subsequent  sales 
of  the  article  may  be  made.  The  patentee  relies  solely 
upon  the  notice  (|Uoted  to  control  future  prices  in  the 
» Bauer  v.  O'Donnell  (1913),  229  U.  S.  1;  ;W  Sup.  Ct.  GIG. 


IJMITATIONS   ON    USE — I'HICK    FIXIN<;  IS.'i 

resale  by  ii  j)un'lui.s('r  of  an  article  said  lo  be  of  ^reat 
utility  iuui  hi^lily  clesiral)le  for  general  use.  The  appellee 
and  the  jobbers  from  whom  he  purchased  were  neither 
the  agents  nor  the  licensees  of  the  patentee.  They  liad 
the  title  to,  and  the  right  to  sell,  the  article  purchased 
without  accounting  for  the  proceeds  to  the  patentee,  and 
without  making  any  further  payment  than  had  already 
been  made  in  the  i)urchase  from  the  agent  of  the  patentee. 
Upon  such  facts  as  are  now  presented  we  think  the  right 
to  vend  secured  in  the  patent  statute  is  not  distinguishable 
from  tlie  right  of  vending  given  under  the  Copyright  Act. 
In  both  instances  it  was  the  intention  of  Congress  to 
secure  an  exclusive  right  to  sell,  and  there  is  no  grant  of  a 
privilege  to  keep  up  prices,  and  prevent  competition  by 
notices  restricting  the  price  at  which  the  article  may  be 
resold.  The  right  to  vend  conferred  by  the  patent  law 
has  been  exercised,  and  the  added  restriction  is  beyond 
the  protection  and  purpose  of  the  act." 

This  rule  was  even  more  forcibly  reiterated  in  the  recent 
case  of  Straus  v.  Victor.^"     There  the  Victor  Company 

^^  Slraiui   V.    \'ictor,   V.   S.   Sii-  tlic  pliiiiitifT  informed  jus  to  the 

preine    (-ourt,    tieciiled    April    '.t,  coiulition  or  use  of  the  insichinc, 

1917.      "It    thus    becomes    dear  for   no   re|x)rt    of   any   eharaeter 

that  this  'License  Notice,'  is  not  is    re(iuir('(l    from    the    'ultimate 

inten(l(>(i    jis   a   security   for   any  user'  alter  he  luus  paid  the  stipu- 

further   i)ayment  upon    the    ma-  lated  price;  that,  notwithstandinj; 

chine,  for  the  full  pric(>,  calli'tl  a  its  apparently  studied  avoidance 

'royalty,'    was    paid    before    the  of    the    use   of   the    \V(jrd    'sale' 

plaintitT  parted  with  the  |)()ss('s-  and  its  frequent  reference  U)  the 

sion  of  it;  that  it  is  not  t(t  he  usimI  word    'use,'    the    most    obvious 

a.s  a  basis  for  tracing  and  keeping  reeiuirements  for  securing  a  bona 


484  THE    LAW   OF   MOTION    PICTURES 

by  means  of  a  complicated  license  notice  attached  to  its 
talking  machines,  ostensibly  sought  to  restrict  the  use  of 
the  machine.  One  of  the  conditions  attached  thereto 
was  that  the  "royalty"  to  be  paid  for  the  ''use"  of  the 
machine  was  not  to  be  less  than  the  amount  specified 
upon  the  notice. 

The  court,  brushing  aside  the  other  conditions  imposed 
by  this  license  notice,  found  that  the  sole  and  real  purpose 
of  the  notice  was  to  restrict  the  price  at  which  the 
machine  could  be  sold  after  the  plaintiff  had  been  paid 
in  full  for  it,  and  re-affirmed  Bauer  v.  O'Donnell. 

The  courts  have  even  placed  limitations  upon  the 
extent  to  which  the  exclusive  right  to  use  the  article  may 
be  applied  by  the" patentee.  Until  recently,  the  rule  was 
that  the  proprietor  of  the  patent  had  the  right  to  place 
any  restrictions  he  deemed  proper  upon  the  use  of  his 
patent.  In  the  "Mimeograph"  case  ^'  it  was  held  proper 
for  the  patentee  to  control  the  use  of  his  article  by  impos- 
ing a  condition  that  the  machine  was  to  be  used  only 
with  the  supplies  made  by  the  patentee. 

fide  enforcement  of  the  restric-  for  this  'License  Notice'  so  far 

tions   of   the   notice   tis   to   'use*  as  we  can  discover,  the  function 

are  omitted;  and   tliat,  even  by  only,  of   fixing   and   maintaining!; 

its   own   terms,   the   title   to   the;  the  price  of  plaintiff's  machines 

machines  ultimately  vests  in  tlic^  to  its  agents  and  to  tlu;  public, 

'ultimate  users,'  without  further  and  this  we  cannot  doubt  is  the 

])aym('nt  or  action  on  their  part,  purpose  for  which  it  really  was 

except  patiently  waiting  for  pat-  designed." 

cnts     to    expire    on    inventions,  ^^  Ilcnii/    v.    .1.    Ji.    Dick    Co. 

which,  HO  far  as  this  notice  shows,  (1911),  224  U.  S.  1;  32  Sup.  Ct. 

may  or  may  not  be  inc()riK)rated  304. 
in   the  machine.     There  remains 


LIMITATIONS   ON    V9>E — PRICE    FIXINO  485 

That  decision,  liDWcxcr,  was  ovorrulcd  in  the  (.-ase  of 
Motion  Picture  Patent  Co.  v.  Universal  Film  Mfg.  Co.^- 
In  this  case,  the  ])laintifT,  the  owner  of  a  patent  for  a 
motion  picture  projectinfz;  machine,  attempted  to  impose 
a  restriction  upon  tlie  use  of  the  machine  to  the  effect  that 
such  machine  was  to  be  used  solely  for  exhibiting  or  pro- 
jectinji;  motion  picture  films  containing  the  inventions  of 
certain  letters  jjatent,  such  films  being  controlled  by  a 
licensee  of  the  plaintiff. 

Subsecjuently  to  the  expiration  of  the  patents  upon  the 
film,  the  j)laintiff  sought  to  restrain  one  of  the  defendants 
from  using  any  film  in  its  projecting  machine  other  than 
the  film  of  plaintiff's  licensee.  It  contended  that  the  use 
of  such  other  film  constituted  an  infringement  of  its 
patent  in  the  projecting  machine. 

Mr.  Justice  Clarke,  writing  for  the  court,  held  that 
such  a  restriction  was  invalid;  that  it  was  an  attempt 
without  statutory  warrant,  to  continue  the  patent  monop- 
oly in  the  film  of  ])laintiff's  licensee  after  such  i)atent  had 
expired;  that  "to  enforce  it  would  be  to  create  a  monopoly 
in  the  manufacture  and  use  of  moving  picture  films  wholly 
outside  of  the  patent  in  suit  and  of  the  patent  law." 

The  court  said,  ''The  exclusive  right  granted  in  every 
patent  must  be  limited  to  the  invention  described  in 
the  claims  of  the  i)atent,  and  that  it  is  not  competent 
for  the  owner  of  a  patent  by  notice  attached  to  its 
machine  to,  in  effect,  extend  the  scope  of  its  patent 
monopoly  by  restricting  the  use  of  it  to  materials  neces- 

'•  Motion    Picture    Pntcntu    Co.  Sec  also:  Unipcrsnl  Film  Co.  v. 

V.    Unii'vrsdl    Film,    \' .    S.    Sup.      CopjHrman     (1914),     21S      ImhI, 
Court,  (Irculod  .\pril  •),  I'.UT.  (C.  C.  A.)  577. 


486  THE    LAW   OF   MOTION    PICTURES 

sary  in  its  operation,  but  which  are  no  part  of  the  pat- 
ented invention." 

The  court  also  held  that  any  provision  in  the  license 
notice  to  the  effect  that  the  proprietor  of  the  patent  shall 
have  the  right  to  impose  any  new  conditions  upon  the 
use  of  the  patented  article  from  time  to  time  was  invalid. 

It  is  easy  to  understand  why  the  court  has  reversed 
itself,  and  has  taken  the  position  declared  in  the  "Motion 
Picture  Patents  Case''  when  we  consider  the  primary 
purpose  of  the  patent  laws.  In  the  words  of  the  court: 
''Since  Pennock  v.  Dialogue,  2  Pet.  1,  was  decided  in 
1829,  this  court  has  consistently  held  that  the  primary 
purpose  of  our  patent  laws  is  not  the  creation  of  private 
fortunes  for  the  owners  of  patents,  but  is  to  promote  the 
progress  of  science  and  the  useful  arts."  (Constitution, 
Art.  1,  Sec.  8.) 

In  the  Bobbs-Merrill  v.  Strauss  case  ^^  the  court  clearly 

'^  Bobbs-Merrill  Co.  v.  Strauss  120  Fed.  (C.  C.  A.)  631;  Bobbs- 
(1908),  210  U.  S.  339;  28  Sup.  Merrill  Co.  v.  Snellenburg  (1904), 
Ct.  722;  Scribner  v.  Strauss  131  Fed.  (C.  C.)  530;  DoM  v. 
(1908),210U.  S.  352;28Sup.  Ct.  Smith  (1891),  144  Pa.  St.  340; 
735.  22  Atl.  710;  Authors'  &  News- 
See:  Hammond  Pvblishing  Co.  papers'  Assn.  v.  O'Gorman  Co. 
V.  Smythe  (1886),  27  Fed.  (C.  C.)  (1906),  147  Fed.  (('.  C.)  016. 
914;  Harrison  v.  Muynard-Mcrrill  Harrison  v.  Mayiianl,  Merrill  & 
Co.  (1894),  61  Fed.  (C.  C.  A.)  Co.  (1894),  61  Fed.  (C.  C.  A.)  689. 
689;  Clemens  v.  Estes  (1885),  "...  The  copy  having  boon 
22  VqxI.  (C.  C)  89Q;  Werckmeister  absolutely  sold  to  liiiu,  the  or- 
V.  Am.  Lithographic  Co.  (1904),  dinary  iiicidoiits  of  owiuMsliip  in 
134  Fed.  ((".  C  A.)  321;  Doan  persoiiul  property,  aiuoiii;  wliicli 
V.  Am.  Book  Co.  (1901),  105  is  the  rifiht  of  alienation,  attach 
Fed.  (C;.  ('.  A.)  772;  Kipling  v.  to  it.  If  he  has  agreed  that  he 
G.     P.    Pulruim's    Sons     (1903),  will  not  sell  it  for  certain  purposes 


RESTRAINT   OF   TRADE  4X7 

defined  its  position  with  respect  to  the  rij^ht  to  hniit  tlic 
price  at  which  a  copyrighted  work  could  be  re-sold.  The 
court  held  that  unless  there  was  a  contract,  and  the 
parties  to  the  suit  were  privy  to  it,  an  attempted  restric- 
tion upon  the  price  of  a  copyrighted  work  was  uneiiforci- 
ble,  and  that  the  sole  right  to  vend  under  the  copyright 
statute  did  not  permit  the  holder  of  a  copyright  to  fasten 
by  notice  in  a  book  or  upon  one  of  the  articles  mentioned 
within  the  statute,  a  restriction  upon  the  subseciuent 
alienation  of  the  subject  matter  of  copyright  after  the 
owner  had  parted  with  the  title  to  one  who  had  ac(juired 
full  domhiion  over  it,  and  had  given  a  satisfactory  price 
for  it. 

The  court  stated  its  position  in  the  following  language: 
"In  our  view  the  copyright  statutes,  while  protecting 
the  owner  of  the  copyright  in  his  right  to  multiply  and 
sell  his  production,  do  not  create  the  right  to  impose,  by 
notice,  such  as  is  disclosed  in  this  case,  a  limitation  at 
which  the  book  shall  be  sold,  at  retail,  by  future  pur- 
chasers, with  whom  there  is  no  privity  of  contract." 

Section  134. — Restraint  of  trade. 

In  the  year  1*JU8,  the  motion  jMcture  business  had 
reached  a  point  where  it  was  regarded  as  one  of  the  lead- 
ing industries  of  the  country.  At  that  time  there  were 
two  aggregations  of  manufacturers,  competing  with  each 
other.  One  group  controlled  the  patents  j)ertaining  to 
the  various  parts  of  the  canicra  us(>(l  in  the  taking  of 
pictures.  The  other  group  was  in  control  of  divers 
patents  in  connection  with  the  machine,  whereby  the 
picture  was  projected  upon  the  screen.    At  the  close  of 


488  THE    LAW   OF   MOTION    PICTURES 

that  year,  finding  competition  and  litigation  between 
them  ruinous,  they  combined  by  pooling  their  patents, 
and  formed  the  Motion  Picture  Patents  Co.,  with  a 
subsidiary  distributing  company,  the  General  Film  Com- 
pany. 

''The  plan  .  .  .  was  first  to  combine  the  defendants, 
who  were  manufacturers  and  importers  of  films,  in  an 
agreement  to  act  as  one  man  might  have  acted.  Lists 
of  exchanges  and  of  theatres  were  prepared,  and  no  ex- 
change was  permitted  to  have  films,  and  no  theatre  to 
exhibit  them,  unless  with  the  consent  of  all  the  defendants. 
The  names  of  none  appeared  upon  this  list  except  such 
as  bought  all  supplies  from  the  defendants,  and  any  who 
dealt  otherwise  were  dropped.  Every  theatre  was  re- 
quired to  pay  a  royalty  for  the  use  of  a  projecting  machine, 
even  when  the  machine  had  been  owned  by  the  exhibitor 
before  the  combination  was  formed.  The  films  passed 
into  the  possession  of  exchanges  and  exhibitors  under  an 
agreement  which  enabled  the  defendants  to  recall  them 
at  will."  '' 

or  to  certain  persons  and  violates  analogy  to  those  of  a  copyright 

his   agreement,   and   sells   to   an  ownc^r. 

innocent    purchaser,    he   can    i)e  '^  United  Stntea  v.  Motion  Pic- 

punished   f(jr   a   violation   of   his  tiire  Patents  Co.  (191.')),  225  Fed. 

agreement,  but  neither  is  guilty  (D.     C.)    800.      Dickinson,     J.: 

under  the  copyright  statutes  of  "...     It  is  evident  that  who- 

an  infringement."  ever   controls   the   films   referred 

Copyright  and  patent  statutes  to    controls    the    motion-i)icturo 

differ  in  tin;  extent  of  protection  business,  but  the  point  with  which 

granted  by  such  statutes.    Hence  we   are   now   concerned    is   that 

the  rights  of  a  patent  owner  are  trade  in  these  films  is  within  the 

not  necessarily  to  be  applied  by  statute.  .  .  ." 


RESTRAINT   OF   TRADE 


480 


Tho  methods   of  the  rombination  were  so    thorougli 
and  olTectivo  that  at  the  time  the  government  tried  its 


And  in  arriving  at  its  conclu- 
sion, after  cleciding  timt  films 
were  articles  of  commerce  and  a.s 
such  within  the  statute,  the 
court  said: 

"We  are  constrained,  however, 
to  find  that  there  was  no  such 
relation,  hut  that  the  end,  directly 
proposed,  was  the  imposition 
upon  the  trade  of  an  undue  and 
unreasonal)le  restraint,  in  order 
that  as  the  immediate  and  direct 
elTect  and  result  of  the  combina- 
tion, the  defendants  might  mo- 
nopolize the  trade  in  all  the  ac- 
cessories of  the  motion  picture 
art  so  far  as  they  are  articles  of 
commerce.  A  further  end  pro- 
posed, and  which  has  larf^ely 
been  acliieved,  is  the  domination 
of  the  motion  picture  business 
itself,  and  it  requires  no  prophetic 
vision  to  foresee  that  the  ultimate 
result  wouKl  be  that  no  play 
would  be  written  or  dramatically 
enacted,  except  by  autliors  and 
artists  favored  by  the  ilefend- 
ants." 

An  earlier  case,  decided  in  the 
United  States  Supreme  Court 
in  which  various  owners  of  pat- 
ents had  i)()ol('d  their  patents 
and  had  therel)y  ciTected  a  com- 
bination    in     violation     of     the 


Sherman  Law  is  the  case  of 
Stdndan!  Sanitary  Co.  v.  U.  S., 
commoidy  referred  to  as  the 
"Bathtub"  case  (1912),  22G 
U.  S.  20;  33  Sup.  Ct.  9. 

See  also-  A''.  Y.  Motion  Picture 
Co.  V.  Universal  Film  (1912),  77 
Misc.  (N.  Y.)  581 ;  137  X.  Y.  Supp. 
278;  Metropolitan  Opera  Co.  v. 
Hammer.^tein  (1914),  162  A.  D. 
(N.  Y.)  691;  147  \.  Y.  Supp.  5:32; 
People  V.  Klaw  (HK)7),  5o  Mi.sc. 
(X.  Y.)  72;  106  X.  Y.  Supp.  341; 
Matter  of  Jackson  (1907),  57  Misc. 
(X.  Y.)  1 ;  107  X.  Y.  Supp.  799. 

For  a  case  where  various  own- 
ers of  copyrights  pooled  their 
respective  copyrights  and  thereby 
effectuated  a  combination  which 
tended  to  create  a  monopoly 
in  violation  of  statute,  see  Strau.'i 
V.  .4m.  Pub.  Ass'n  (1913),  231 
U.  S.  222;  34  Sup.  Ct.  84. 
"So,  in  the  present  case,  it 
cannot  be  successfully  contended 
that  the  monopoly  of  a  copy- 
right is  in  this  resjx^ct  any  more 
extensive  than  that  securetl  under 
the  patent  law.  Xo  more  than 
the  patent  statute  was  tlie  Copy- 
right Act  intended  to  authorize 
agreements  in  unlawful  restraint 
of  trade  and  tending  to  monofv 
oly   in   violation   of   the   specilic 


490  THE    LAW   OF   MOTION   PICTURES 

suit  to  dissolve  the  combination  (Oct.  1,  1915)  out  of 
one  hundred  and  sixteen  independent  manufacturers, 
there  was  but  one  solitary  survivor. 

Fortunately,  for  the  business  and  for  the  public  as 
well,  the  combination  was  dissolved  under  the  "Sherman 
Anti-Trust  Law."  '•' 

Although  this  decision  has  had  an  enormous  beneficial 
effect  in  re\dvifying  and  stimulating  the  industry  to  a 
more  active  and  higher-class  standard  of  production,  we 
beheve  that  it  has  resulted  in  a  great  waste  of  money. 
Each  group  of  manufacturers  has  attempted  to  conduct 
its  business  independently  of  the  others,  and  to  that  end 
numerous  and  vast  chains  of  distributing  centres  have 
been  formed.  These  are  unnecessary,  and  might  well  be 
eliminated.  The  inevitable  trend  of  the  industry  is  to 
recombine  as  formerly,  not,  however,  for  the  purpose  of 
restraining  trade  and  destroying  competition,  but  with 
the  object  of  effecting  greater  efficiency  and  economy  by 
doing  away  with  so  many  exchanges,  and  distributing 
through  a  common  source. 

terms  of  the  Sherman  Law,  which  '*  For  a  history  of  the  litiga- 

is  broadly  designed  to  reacli  all  tion  leading  up  to  the  formation 

combinations     in     unlawful     ro-  of  the  combination,  see:   Edison 

straitit    of    trade    and    tending  v.    Am.    Mutoscope    (1902),    114 

because    of    the    agreements    or  Fed.   (C.  C.  A.)  926;  I'Jdison  v. 

combinations     entered     into     to  Am.  Mutoscope  (1907),  l.'il  Fed. 

build     up     and     to     perpetuate  (C.   C.   A.)   767;   Greater  N.    Y. 

monopolies."      See    also:    Mines  Film  Rcninl  Co.  v.  liioqraph,  U. 

V.    Scrilmer     (1906),     147    Fed.  S.  Dist.  Court,  S.  1).  N.  Y.,  .luly 

(C.  C.)  927.  12,  1912,  reversed  20:}  Fed.  ;39. 


CHAPTER  XTI 

COPYRIGHT 

In  General 

Sec.  135.  Common-law  riglits. 

l.iO.  What  is  secured  by  copyright. 

137.  How  copyriiiilit  is  secured. 

138.  Publication. 

139.  Notice  of  copyright. 

140.  Licensee's  failure  to  in.sert  notice. 

141.  False  notice  of  copyright. 

142.  Title— Changing:  title. 

143.  Who  may  .secure  copyright. 

144.  Belligerent  aliens. 

145.  In  what  name  copyright  may  be  taken  out. 

146.  Subjects  of  copyriglit  -in  general. 

147.  Immoral  and  seditious  works. 

148.  Gags,   stage    business,    contrivances,    carttK)ns,    ativertise- 

ments. 
14<>.  Burles(iues,  parodies,  inferior  copies. 

150.  Copyrighting  revised  edition  of  work. 

151.  Works  in  public  domain. 

152.  Comjjonent  parts. 

153.  Term  of  copyright. 

154.  Renewal  of  copyright. 

155.  ;\.ssignment  of  cojjyriglit. 

156.  Difference  between  a.s.signment  and  license. 

Section  135. — Common-law  rights. 

The  author  <>f  a  work   is  not    hound   to  copyrifilit    it, 

491 


492 


THE    LAW   OF  MOTION   PICTURES 


in  this  country,  in  order  to  protect  it.    He  has  a  common- 
law  right  ^  which  in  many  ways  resembles  copyright,  and 


^Palmer  v.  De  Witt  (1872), 
47  N.  Y.  532.  "An  author  or 
proprietor  of  an  unpublished 
literary  work  has  then  a  property 
in  such  work,  recognized  and  pro- 
tected both  here  and  in  England, 
and  the  use  and  enjoyment  of  it 
is  secured  to  him  as  a  right. 
This  property  in  a  manuscript 
is  not  distinguishable  from  any 
other  personal  property.  It  is 
governed  by  the  same  rules  of 
transfer  and  succession,  and  is 
protected  by  the  same  process, 
and  has  the  benefit  of  all  the 
remedies  accorded  to  other  prop- 
erty so  far  as  applicat)lc." 

See  also  the  other  two  leading 
cases  in  this  country  on  common- 
law  rights:  Totnpkins  v.  Ilallock 
(1882),  133  Mass.  32;  Carter  v. 
Bailey  (1874),  64  Me.  4.58. 

See  also:  Aronson  v.  Flecken- 
stein  (1886),  28  Fed.  (C.  C.)  7.5; 
Boucicaull  v.  Fox  (1862),  .5 
Blatch.  (C.  C.)  87;  Banker  v. 
Caldwell  (1859),  3  Minn.  46;  Oertcl 
V.  Wood  (1870),  40  How.  Pr. 
(N.  Y.)  10;  Shook  V.  Daly  (1875), 
49  How.  Pr.  (N.  Y.)  306;  Fretick 
V.  McGuire  (1878),  55  How.  Pr. 
(N.  Y.)  471;  Shook  v.  Rankin 
(1875),  6  Biss.  (C.  C.)  477;  Bou- 


cicaull V.  Wood  (1867),  2  Biss. 
(C.  C.)  34;  Croupe  v.  Aiken  (1870), 

2  Biss.  (C.  C.)  208;  Boucicault 
V.  Hart  (1875),  13  Blatch.  (C.  C.) 
47;  Fed.  Cas.  No.  1692;  Parton  v. 
Prang  (1872),  3  Chff.  (C.  C.)  537. 

For  English  cases  see:  Soidhey 
V.  Sherwood  (Eng.)  (1817),  2  Mer. 
435;  Tonson  v.  Collins  (Eng.),  1 
W.  Bl.  301;  Jeffries  v.  Boosey 
(Eng.)  (1854),  4  H.  L.  Cas.  815; 

3  C.  L.  R.  625;  24  L.  J.  Ex.  81; 
Prince  Albert  v.  Strange  (Eng.) 
(1849),  1  Mac.  &  G.  25;  1  H.  & 
T.  1;  18  L.  J.  Ch.  120;  13  Jur. 
109;  Queensherry  v.  Shebbcare 
(Eng.)  (1758),  2  Eden,  329;  Man- 
sell  V.  Valley  Printing  Co.  (Eng.) 
(1908),  L.  R.  2Ch.  441;  77  L.  J. 
Ch.  742;  99  L.  T.  464;  28  T.  L. 
R.  802. 

As  to  wheOier  copyright  is  con- 
sidered personal  property  see:  La- 
totir  V.  Bland  (Eng.)  (1818),  2 
Stark,  382;  Palmer  v.  De  Witt 
(1872),  47  N.  Y.  .5.32. 

As  to  whether  common-law  rights 
in  an  unptddished  manuscript 
may  be  acquired  l)y  adverse  pos- 
session see:  O'Neill  v.  General 
Film  Company  (1916),  171  A.  D. 
(N.  Y.)  8.54;  1.57  N.  Y.  Supp. 
1028;  modifying  152  N.  Y.  Supp. 


COMMON-LAW    mcJHTS  49.'i 

wliicli  iio  may  enforce  in  tlie  state  courts-  or  in  the  Federal 
courts,  if  other  jurisdictional  elements  are  present.-^ 

Those  rights  are  not  lost  by  the  sale  of  the  manuscript, 
l)ut  on  the  contrary  pass  to  the  purchaser,  who  may  in 
turn  sell  the  manuscript  and  thus  convey  the  rights  to 
the  new  purchaser.  Where  the  owner  of  the  manuscript 
dies,  the  common-law  rights  in  it  pass  to  liis  next  of  kin 
or  legatee,  and  tlie  rights  continue  indefinitely  until  they 
are  lost  by  publication  or  copyright.' 

This  is  well  illustrated  in  O'Neill  v.  General  Film  Com- 
pnnyj'  where  the  action  was  brought  for  an  injunction 
and  an  accounting  l)y  reason  of  defendants'  infringement 
of  plaintiff's  unpublished  manuscript  of  a  play  entitled 
"Count  of  Monte  Cristo."  The  court  found  that  one 
Charles  Fechter  made  a  dramatic  version  of  the  novel 
of  that  title  prior  to  the  year  1883;  that  in  that  year  one 
John  Stetson,  the  proprietor  of  a  theatre  in  Boston  was 
the  owner  of  the  Fechter  version  manuscript;  that  in  1885 
the  said  John  Stetson  sold  tlie  manuscript  to  the  plaintiff 
599.      See     also     Hart     v.    Foz  i^ee  aUo:  Lytton  \.  Dcrcy  (Eng.) 

(1917),     N.     V.     L:i\v     Journal,      (ISSD.iViL.T.  121.    The  perse  mill 
August  24.  represeuUitives     of     Ji     tlecedcut 

'^Palmer  v.  l)e  Wilt  (1S72),  prevented  the  publication  of  the 
47  N.  Y.  'hi'2;  T(>ini)kiits  v.  II(i(-  tlocedent's  letters.  Maanillan 
lock  (1SS2),  KW  Mjuss.  :i2;  Curler  Co.  v.  Dad  [Kng.)  (1!K)()),  1  Ch. 
V.  BniUy  (1S74),  04  Me.  45S.  101  (Times,  Nov.  8);  23  T.  L.  R. 

^  Press  Publ.  Co.  v.  Monroe  4.');  Philip  v.  Penndl  (Kng.) 
(1S9()),  73  Fed.  (C.  C.  A.)  (1907),  L.  R.  2  Ch.  577;  76  L.  J. 
196.  Ch.  <i<>^i;  97  L.  T.  :3S0;  23  T.  L. 

«  While  V.  Cfcroch  (Enp;.)  (1S19),      R.  71.S. 
22  R.  R.  786;  2  B.  &  Aid.  298;  1  '•(rXcill   v.   C.cncral   Film   Co. 

Chit.    24;    Palmer    v.    Dc     Witt      {V.m),  171   .\.   I).   (X.  Y^   ^"' 
(1872),47N.  Y.  532.  l.">7   X.  Y.  Supp.    lOJs. 


494  THE    LAW   OF   MOTION    PICTURES 

in  the  action  who,  since  that  time  had  been  in  "continuous 
uninterrupted  open  possession  of  the  said  play."  Indeed 
the  court  found  it  so  difficult  to  prove  a  chain  of  title  that 
judgment  for  plaintiff  was  really  given  upon  the  theory 
of  adverse  possession.  An  injunction  was  granted  en- 
joining the  exhibition  of  defendants'  infringing  motion 
picture. 

Common-law  rights  obtained  in  England  as  well  as 
in  this  country  prior  to  1911  when  they  were  altogether 
abrogated  in  England,  and  the  author  was  thenceforth 
bound  to  look  for  protection  only  to  the  Copyright  Stat- 
ute. In  the  United  States,  however,  there  has  been  no 
change  in  the  common-law  rule,  and  common-law  rights 
are  still  recognized  and  protected.*^  The  present  copyright 
statute  expressly  provides  that  nothing  in  the  Act  shall 
be  construed  to  annul  or  limit  the  right  of  an  author  or 
proprietor  of  an  unpublished  work,  at  common  law  or  in 
equity,  to  prevent  infringements  thereof.^ 

Under  the  common  law  the  author  has  the  exclusive 
right  to  perform  his  unpublished  dramatic  composition; 
and  as  long  as  the  work  remains  unpublished  he  may 
enjoin  anyone  from  infringing  upon  that  right.**  He  also 
has  the  right  to  a  first  publication.  But  by  publication 
he  loses  all  his  common-law  rights. 

"As   author  of   the  work  .  .  .  the   literary  property 

'^Palmer     v.     DeWUt     (1872),  ^  Copyright  Act  of  1909— Scc- 

47  N.  Y.  ').i'2;  Tompkins  v.  Ilalloch  tion  two. 

(1HH2),   i;«    Mass.  :i2;  Carter  v.  '' Pnlmvr     v.     DeWilt     (1872), 

Hailcii  (1874),  (54  Mo.  458;  Press  47  N.  Y.  :V,12;  Tompkins  v.  Ilnl- 

Pub.   Co.   V.   Monroe   (1896),  T.i  lock  (1882),  ViS  Mass.  32;  Carter 

.  Fed.  (C.  C.  A.)   196.  v.  Baiky  (1874),  64  Me.  458. 


COMMON-I.AW    RIGHTS  49') 

vested  in  lior  consisted  .  .  .  <>1"  liic  following  rights, 
])riviloges  or  powers:  Before  imblicalion:  The  sole  exclusive 
interest,  use  and  control.  The  right  to  its  name,  to  con- 
trol or  prevent  i)ubhcation.  The  right  of  private  exhibi- 
tion, for  criticism  or  otherwise,  reading,  representation 
and  restricted  circulation;  to  copy,  and  permit  others  to 
copy,  and  to  give  away  a  copy;  to  translate  or  dramatize 
the  work;  to  print  without  pubUcation;  to  make  qualified 
distribution.  The  right  to  make  the  first  pubUcation. 
The  right  to  sell  and  assign  her  interest,  either  absolutely 
or  conditionally,  with  or  without  qualification,  limitation 
or  restriction,  territorial  or  otherwise,  by  oral  or  written 
transfer.  .  .  . 

"After  publication:  Unrestricted  publication  without 
copjTight,  is  a  transfer  to  the  public  to  do  most  of  the 
things  the  author  might  do,  in  common  with  her,  except 
all  rights  of  transfer  and  sale  which  remain  to  the  author; 
but  without  advantage,  since  the  work  has  become,  by 
the  publication,  conunon. property."  '■• 

The  exclusi\'e  right  of  nuiltii)lying  and  vending  copies 
of  an  intellectual  work  is  of  i)urely  statutory  origin.'" 
The  moment  an  author  multiplies  and  vends  his  work  he 
jniblishes  the  same,  and  his  common-law  rights  are  for- 
ever gone  with  pubUcation. ' '     PubUcation,  however,  with- 

*  Harper    v.    Donohne    (IDOo),  S  Pet.  r)9l.     For  :i  historinil  and 

144  Fed.  (C.  C.)  491.  irniK)rt!int  discu.ssion  of  coinimm- 

*'>  Donaldson   v.    Bcckd    (EiiR.)  law   rights   and   statutory    rights 

(1774),    4    Burr.    2408    (EriBU.sh  in    Utorarj'    proix-rty.      It    holds 

House    of     Lords);     Wlicaton    v.  in    t'fTeot     tliat     i)y     publication 

Peters  (1834),  8  IVt.  'A)l.  the  author  loses  all  his  conunon- 

^^Whcaton    v.    Pdcrs    (1834),  law  rights  and   must  thereafter 


496 


THE    LAW   OF   MOTION    PICTURES 


out  the  consent  of  the  author  does  not  destroy  his  com- 
mon-law rights.^^ 

In  Uke  manner  the  common-law  rights  are  lost  when 
copyright  of  the  work  is  obtamed.^^  Common-law  rights 
and  copyright  in  the  same  work  are  not  co-existent. 
Where  one  ends  the  other  begins.  It  is  as  if  the  pubUc 
said  to  the  author,  "Give  us  the  benefit  of  your  work, 
and  we  will  confer  an  exclusive  monopoly  upon  you  with 
greater  rights.  In  exchange  for  that,  we  are  to  possess 
it  wholly  after  a  definite  term." 


look    to    the    statute    alone    for 
protection. 

See  also:  Holmes  v.  Htirst 
(1899),  174  U.  S.  82;  19  Sup.  Gt. 
606;  Burrow-Giles  Lithog.  Co.  v. 
Sarony  (1884),  111  U.  S.  53; 
4  Sup.  Ct.  279;  Walker  v.  Globe 
Newspaper  Co.  (1908),  210  U.  S. 
356;  28  Sup.  Ct.  726;  Wheaton 
V.  Peters  (1834),  8  Pet.  591; 
Jewelers'  Mercantile  Agency  v. 
Jewelers  (1898),  155  N.  Y.  241; 
49  N.  E.  872;  Daly  v.  Walrntk 
(1899),  40  A.  D.  (N.  Y.)  220;  57 
N.  Y.  Supp.  1125;  Palmer  v.  De- 
Witl  (1872),  147  N.  Y.  532;  Recs 
V.  Peltzer  (1874),  75  111.  475; 
Stevens  v.  Cody  (1852),  14  How. 
528;  Millar  v.  Taylor  (Eng.) 
(1769),  4  Burr.  2331;  Read  v. 
Conquest  (Eng.)  (1861),  9  C.  B. 
(N.  S.)  755;  3  L.  T.  888;  9  W.  R. 
434;  liohbs  Merrill  v.  Strams 
(1906),  147  Fed.  (C.  C.  A.)  15; 


Caliga  v.  Inter  Ocean  Newspaper 
Co.  (1907),  157  Fed.  (C.  C.  A.) 
186. 

^'Harper  v.  Donohue  (1905), 
144  Fed.  (C.  C.)  491-498.  "Pub- 
lication in  a  foreign  country 
without  the  consent  of  the  author 
is  not  an  abandonment,  Bouci- 
cault  V.  Wood,  2  Biss.  34,  or  with- 
out the  consent  of  the  owner  of 
the  exclusive  right  to  publish  in 
this  country.  Goldmark  v.  Krc- 
ling  (1888),  35  Fed.  (C.  C.)  661." 

'^Savage  v.  Hoffman  (1908), 
159  Fed.  (C.  C.)  584;  Photo 
Drama  Picture  Co.,  Inc.,  v.  Social 
Film  Co.  (1915),  220  Fed.  (C.  C. 
A.)  448;  West  Publisliing  Co.  v. 
Thompson  (1909),  169  (C.  C.)  833; 
Jewelers'  Mercantile  Agency  v. 
Jewelers  (1898),  155  N.  Y.  241; 
49  N.  E.  872. 

Sec  also  cases  cited  under 
footnote  11. 


rOMMON-I.AW     I(I<;HTS 


497 


When  Uicre  is  ii  j)ul)licuti()ii  of  the  work  and  the  statutes 
has  not  been  complied  with,  the  work  is  forever  dedicated 
to  the  pubhc." 

Wliile  perfonning  rights  were  not  within  the  provisions 
of  8  Anne  which  gave  to  authors  the  sole  liberty  of  i)rint- 
ing  their  books  ^^  the  author  now  has  the  sole  right  (jf 
dramatization  in  his  common-law  work.  As  the  per- 
formance of  a  i)lay  or  motion  picture  is  not  a  "publica- 
tion" thereof,'''  he  may  produce  the  same  upon  the  stage 
or  screen  and  still  retain  his  common-law  rights  therein. 
Hence  a  motion  picture  may  be  protected  before  publica- 
tion under  the  common  law.'^ 

It  has  been  held  that  where  on  assignment  of  the  pub- 
lication rights,  the  performing  rights  in  an  unpublished 
drama  have  been  reserved  by  an  author,  the  statutory 
performing  rights  are  vested  in  him,  innnediately  upon 


^*  Koppcl  V.  Downing  (1897), 
11  App.  Dist.  C^)l.  93.  Where 
c'opyriRlit  in  a  i)lay  had  not  been 
perfected  Ity  tlie  dejXJsit  of  copies, 
the  hcensee  could  not  at  a  sul)- 
sequent  date  obtain  valid  copy- 
right  therein,  even  though  his 
contract  witli  the  proprietor  gave 
him  that  riglit. 

Sec  also  cases  cited  untler 
footnotes  11,  12  and  13. 

^^  Coleman  v.  Walhcn  (l^ng.), 
5  T.  R.  245. 

'*  A  ronson  v.  Fleckenstein  ( 18.S(i) , 
28  Fed.  (C.  C.)  75.  "The  law 
is  now  too  well  settled  to  require 


the  citation  of  authorities  that 
tlie  playing  of  a  dramatic  com- 
position is  not  such  a  publica- 
tion as  makes  the  comjxjsition 
jmljhc  proj)erty.  .  .  ." 

Sec  also:  Thomas  v.  Lennon 
(1.SS3),  14  Fed.  (C.  C.)  849; 
liouriaiuU  V.  Ilmi  (1875),  13 
Hlatch.  47;  Pnlmir  v.  DeWitl 
(1S72),  47  \.  V.  532;  Macklin  v. 
Richardson  (Eng.),  Ambler,  694; 
Morris  v.  Kelly  (Eng.),  1  Jac.  it 
W.   481. 

"  Universal  Film  v.  Copperman 
(1914),  218  Fed.  (C.  C.  A.) 
577. 


498 


THE    LAW   OF   MOTION    PICTURES 


the  publication  of  the  work  and  the  securing  of  copy- 
right therein.  ^^ 

In  actions  for  infringement  of  the  common-law  rights 
in  a  play  or  motion  picture,  the  complainant  is  entitled 
to  an  injunction  and  an  account  of  profits/^  and  even 
exemplary  damages. ^° 


^<' Fitch  V.  Young  (1911),  230 
Fed.  (D.  C.)  743.  Complainant's 
testator,  Clyde  Fitch,  wrote  a 
play  he  assigned  to  Macmillan 
Company.  They  took  out  copy- 
right and  published  the  work. 
Clyde  Fitch  reserved  the  per- 
forming rights.  Thereafter  the 
Macmillan  Company  assigned 
the  copyright  to  Clyde  Fitch 
which  contained  the  following 
clause:  "This  assignment  shall  not 
affect  in  any  way  the  right  of  the 
Macmillan  Company  to  publish 
the  above-described  works.  The 
company  shall  continue  to  have 
the  sole  and  exclusive  right  to 
publish  said  works  as  though  this 
assignment  had  not  been  made." 
The  copyright  was  secured  prior 
to  the  present  statute,  and  undcT 
Rev.  St.  4952  which  did  not  give 
the   exclusive   right    to    novelize 


a  play  to  the  copyright  proprietor. 
Defendants  published  a  story  in 
its  magazine  which  it  is  alleged 
infringes  upon  complainant's  play. 
The  court  after  holding  that  the 
assignment  conveyed  only  the 
performing  rights  but  reserved 
the  copyright  in  the  Macmillan 
Company  said: 

Hand,  J.:  "The  right  to  novel- 
ize did  not,  however,  exist  be- 
fore the  Copyright  Act  of  1909, 
and  the  only  basis  for  suit  against 
a  story  as  piracy  which  could 
arise  under  this  copyright  would 
be  by  virtue  of  the  exclusive  right 
to  'copy'  granted  by  section  4952 
of  the  Revised  Statutes,  a  right 
which  the  Macmillan  Company, 
the  owner  of  the  copyright,  alone 
has  the  riglit  to  invoke;.  Any 
right  to  novelize  the  play  in  such 
form    as    does    not    result    in    a 


^«  French  v.  Kreling  (1894), 
63  Fed.  {C.  C.)  621. 

See  also:  O'Neill  v.  (tcnvml 
Film  (1916),  171  A.  D.  (N.  Y.) 


854;  157  N.  Y.  Supp.  1028;  modi- 
fying 152  N.  Y.  Supp.  599. 

2»  Prei^H  PiMishing  Co.  v.  Mon- 
roe (1896),  73  Fed.  (C.  C.  A.)  196. 


WHAT    IS    SECl'KEl)    HY    ( Ol'YUKJHT 


•I'J!) 


Wlicrc  the  manuscript  is  coiiVLTted  the  phiintilT  may 
ask  iv  go  to  the  jury  on  the  (juestion  of  damages,  even 
though  the  work  has  no  fixed  or  definite  value.-' 

Section  136. — What  is  secured  by  copyright. 
The  copyrighting  of  a  photoplay  gives  to  the  copyright 


'ropy'  is  ti  riglit  in  tlio  public 
domain,  tind  would  iiilu-re  in  tli(! 
first  novclizcr,  whether  he  were 
Clyde  Fitt'h  or  another;  any 
right  so  to  change  the  play  that 
a  court  would  still  consider  it  a 
'copy'  of  the  play  is  within  the 
exclusive  control  of  the  Mac- 
inillan    Company." 

-'  Toft  V.  Smith  Gray  &  Co. 
(1<)12),  7G  iMisc.  (X.  Y.)  2S3; 
134  X.  Y.  Supp.  1011.  In  an 
action  for  the  conversion  of  an 
unpublished  manuscri|)t  havin}? 
only  a  speculative  value,  evidence 
of  the  nature  of  the  property, 
whether  it  can  be  reproduced, 
it^s  utility  to  the  owner  and  his 
estimate  of  its  value,  if  not  other- 
wise determinal)l(',  is  comjx'tent 
u|)on  the  (juestion  of  damages. 

When  the  value  of  property, 
the  re|)r()duction  of  wliich  is 
impos.><il)l(',  cannot  be  ilefinitely 
ascertained,  the  question  of  its 
value  to  the  owner  is  for  the  jury. 

Where  the  pro|x>rty  has  no 
market  value,   the  actual   value 


to  the  owner  is  the  measure 
of  damages.  Leoiwini  v.  Post 
(1891),  13  N.  Y.  Supp.  82.5; 
Frankenstein  v.  Thomas  (1872), 
4  Daly  (X.  Y.),  2r}6;  WaUion  v. 
Cowdrey  (1880),  23  Hun  (X.  Y.), 
169. 

In  Hpicer  v.  Waters  (1866), 
65  Barb.  (X.  Y.)  227,  it  is  said: 
"When  the  property  has  no  mar- 
ket value,  such  as  paintings, 
viamtscripls,  etc.,  the  damages 
are  in  the  discretion  of  the  jur>'. 
Press  Publ.  Co.  V.  Monroe  (1896), 
73  Fed.  (C.  C.  A.)  196;  Wo<xl  v. 
Canard  Steamship  Co.  (1911), 
192  Fed.  (C.  C.  A.)  293. 

See  in  this  connection:  Stover 
V.  Lathrop  (1,S8S),  .33  Fed.  (C.  C.) 
3IS.  Where  a  book  is  copy- 
righted and  the  action  is  brought 
in  trover  and  there  is  no  alle- 
gation of  copyright  the  jury 
may  not  take  into  consideration 
in  computing  the  damages  the 
infringement  of  the  copyright  in 
the  book  occasioned  by  the  con- 
version. 


500.  THE    LAW    OF   MOTION    PICTURES 

proprietor  thereof  the  exclusive  right  to  pubUsh,  copy 
and  vend  the  photoplay;  to  make  any  other  version  of 
the  motion  picture,  to  noveUze  it,  to  perform  it  publicly, 
and  to  make  a  transcription  thereof  in  whole  or  in  part 
so  that  it  may  be  performed  upon  the  stage  with  living 
actors. -- 

Section  137. — How  copyright  is  secured. 

Under  the  present  Copyi'ight  Act  a  motion  picture 
may  be  copyrighted  in  one  of  three  ways: 

1.  Where  it  is  sought  to  be  cop>Tighted  as  an  unpub- 
hshed  work  and  the  motion  picture  is  a  photoplay,  copy- 
right is  secured  by  the  deposit  in  the  office  of  the  Register 
of  Copyright  with  claim  of  copyright  of  the  title  and 
description  of  such  photoplay,  together  with  one  print 
taken  from  each  scene  or  act.-^ 

"  Section  one,  Subd.  (a)  (h)  (d),  jihoto-plays";  and  class  "m," 
of  the  Copyright  Act  of  VM).  "Motion     pictures     other     than 

■'  Copyright  Act  of  1909,  Sec-      photo-plays." 
tion  eleven.  In  order  to  secure  registration 

of  claims  to  copyright  for  sucii 
MOTION   PICTURES  works  tiie  following  steps  should 

he  taken  in  compliance  with  tlu; 

DIRECTIONS  FOR  SECUIUN(;    UECIS-  .    .  .      ,,  .     , 

express    provisions    ol     the    Act 

TUATION    UNDER  TUE   AMEND-  ..      , 

Cited. 

ATORY      COPYRKIHT      ACT      OF 

AUGUST  24,  1912.  MOTION-PICTURE    PHOTO- 

The  amendment  of  the  Copy-  IM.AYS 

right  Act,  approved  August  21, 

1912,  provides  for  obtaining  copy-  1.  Motion-picture    photo-plays 

right  for  two  new  classes  of  works,  not  reproduced  in  copies  for  sale. 

nuiTiely:  Deposit  in  the  Copyright  Office, 

Cla.ss     "1,"     "Motion-picture  VVa.shiiigton,  D.  C. 


now    ( OI'VKIOHT    IS   .SECI'RED 


501 


2.  Wlioro  tho  motion  picture  is  otlicr  than  a  photoplay 
and  it  is  sought  to  coin-rifrlit  tlio  saiiic  as  an  luipuhhslicd 

(1)  The  title  of  tlic  motioii- 
pictiirc  plioto-phiy. 

(2)  A  (IcscriptitiM  of  the  work, 
prefomhiy  either  printed  or 
ty|)e\vritteii. 

(.3)  A  j)hotof?raph  tak(>M  from 
each  scene  of  every  act. 

These  tlejx)sits  should  l)e  ac- 
companied by  an  appHcation 
for  recording  tlie  chiiin  to  copy- 
right. For  this  purpose  use 
application  form  'L  2,"  wliich 
will  be  furnished  by  the  Copy- 
riRht  Office  upon  retjuest.  Also 
send  with  the  application  a  jiost 
office  or  express  money  order  to 
pay  the  statutory  registration 
fee  of  SI. 00. 

II.  Motion-picture  i)hoto- 

I)lays  rcpnulucccl  in  copies  for 
sale. 

When  tlie  motion-picture  photo 
play  has  been  published  (i.  e., 
placed  on  .sale,  sold,  or  publicly 
distributed)  with  the  re(iuire(l 
notice  of  copyright  upon  each 
copy,  promptly  after  such  pul)li- 
cation  deposit  in  the  Copyright 
Office  two  com|)lete  copies  of 
the  work,  accompanied  by  an 
application  ff)r  recording  tlie 
claim  to  copyright  in  the  pul)- 
lished  work.  For  this  purj».se 
use    application    form    "L     1," 


whicii  will  be  furnished  by  the 
Copyright  Ollice  Ujjon  retjuest. 
Also  send  with  the  application 
a  post  office  or  express  money 
order  to  pay  the  statutory  regis- 
tration fee  of  S1.()0. 

MOTION  PICTL'RFS  OTIiF.ll 
THAN    PHOTO-PLAVS 

I.  Motion  pictures  other  than 
photo-j)lays  not  reproduced  in 
copies  for  .sale. 

Deposit  in  the  Copyright  Of- 
fice, Washington,  D.  C. 

(1)  The  title  of  the  motion 
picture. 

(2)  A  description  of  tlie  work, 
preferably  either  printeil  or 
ty])<'written. 

(.3)  Two  or  more  photographs 
taken  from  different  section.s 
of     the     complete     nvitiou 
picture. 
These   de|K)sits  should   be  ac- 
companied by  an  application  for 
recording  the  claim  to  copyright. 
Fitr  this  i)ur|K)se  use  apj)lication 
fonn  "M  2,"  which  will  be  fur- 
nisiied    by   the   Copyright   Office 
upon    HMjuest.      .\l.so   send    with 
the     ajjplication     a     post     office 
or   expre.><s  money  order   to  i)ay 
the  statutory  fee  of  ."§1.00. 


502 


THE    LAW    OF   MOTION   PICTURES 


work,  copyright  is  secured  by  deposit  with  claim  of  copy- 
right of  the  title  and  description  of  such  motion  picture, 
together  with  not  less  than  two  prints  from  different 
sections  of  the  complete  motion  picture.-^ 

3.  Where  the  motion  picture,  whether  it  be  a  photo- 
play or  a  work  other  than  a  photoplay  is  sought  to  be 
copyrighted  as  a  pubhshed  work,  copyright  is  secured 
by  publication  of  the  motion  picture  with  the  notice  of 
copyright  as  provided  for  by  the  Act.^^ 

It  is  a  condition  precedent  to  the  maintenance  of  an 
action  for  infringement  of  a  work,  the  copyright  in  which 
has  been  secured  by  pubUcation,  to  deposit  in  the  Copy- 


II.  Motion  pictures  other  than 
photo-plaj's  reproduced  in  copies 
for  sale. 

When  the  work  has  been  pub- 
lished (i.  e.,  placed  on  sale,  sold, 
or  publicly  distributed)  with  the 
required  notice  of  cojn'right  upon 
each  copy,  promptly  after  such 
publication  deposit  in  the  Copy- 
right Office  two  complete  copies 
of  the  work,  accompanied  by  an 
application  for  recording  the 
claim  tocopyriglit  in  the  published 
work.  For  this  purpose  use  ap- 
plicatifm  form  "M  1,"  which  will 
be  furnished  by  tlie  C'opyriglit 
Office  upon  recjuest.  Also  send 
with  the  application  a  post  office 
or  ex{)r('ss  money  order  to  pay 
thestatutf)ry  feeof  $1.()0. 

hi  .'ill  C!i.«<(!s  the  inoiK'V  order 
remit  ting    the     rcgistrati«jn     fee 


should  be  made  payable  to  the 
"Register  of  Copyrights."  Send 
the  title,  description,  prints, 
copies,  application  and  fee  in 
one  parcel,  addressed  to  the 
Register  of  Copyrights,  Wash- 
ington, D.  C. 

If  any  motion  picture  has  been 
registered  as  a  work  "not  re- 
produced in  copies  for  sale," 
it  must  nevertheless  be  registered 
a  second  time  if  it  has  been 
afterward  jjublished. 

ThoHVALD   SoLBKIUi , 

Register  of  Copyrights. 

2<  Copyright  Act  of  1000,  Sec- 
tion eleven. 

"Copyriglit  Act  of  1000,  Sec- 
tion twelve. 

N.  Y.  Times  v.  Star  Co.  (1012), 
105  Fed.  (C.  C.)  110. 


PUBLICATION  TiO^ 

right  Offiro,  or  in  the  mail  addressed  to  tlie  Register  of 
C()l)yriglits,  Wusliington,  D.  C,  promptly  after  such 
publication,  two  complete  copies  of  the  best  edition  of 
the  work,  together  with  claim  for  cop>Tight  regis- 
tration. 

Under  Section  five  of  the  Act  the  appHcation  for  regis- 
tration must  specify  to  which  class  therein  enumerated, 
the  work  for  wliich  copwight  is  claimed,  belongs. 

When  the  motion  picture  is  a  photoplay  the  apphcation 
must  be  made  under  group  (1)  and  where  it  is  other 
than  a  photoplay,  under  group  (m). 

The  validity  of  the  copyright,  however,  is  not  affected 
because  of  improper  classification  -'"'  and  indeed  Section 
five  expressly  provides  that  no  error  in  classification  shall 
invalidate  or  impair  the  copyright  nor  limit  the  subject 
matter  of  copjTight. 

Section  138. — Publication. 

Just  what  constitutes  "Publication"  with  respect  to 
motion  pictures  has  not  been  defined  by  the  statute,  and 
has  not  been  clearly  stated  by  the  courts.  Under  the 
Act  27  and  under  the  rules  -''  promulgated  by  the  Regis- 
ter of  Coi)}Tights,  res]iecting  the  registration  of  claims 
to  copyright  as  pro\i(led  by  the  Act,  publication  takes 
place  where  copies  of  the  first   authorized  edition  are 

« Green   v.   Luhij    (1900),   177  "Copyright  Art  of  1909,  Sor- 

Fod.  {C.  C.)  2S7.    "But  the  fact  tion  sixty-two. 

that  the  skctcli  was  iinproijerly  »» Rules    and    Regulations    of 

classified  as  a  dramatic  comix)si-  Copyright   Office,    Rule   twenty- 

tion  in  taking  out   the  copyright  Gve. 
would  not  alTect  its  validity.'' 


504  THE   LAW   OF   MOTION   PICTURES 

placed  on  sale,  sold  or  publicly  distributed  by  the  pro- 
prietor of  the  copyright  or  under  his  authority. 

Clearly,  when  the  motion  picture  is  offered  for  sale 
outright,  the  date  when  it  is  first  so  offered  is  the  date 
of  publication.^^ 

The  usual  method  of  procedure,  however,  is  for  the 
producing  company  to  place  a  number  of  the  positive 
prints  of  the  film  in  exchanges,  where  they  are  rented  to 
exhibitors  at  fixed  compensation.  Title  in  the  prints 
always  remains  in  the  producer  or  distributor.  Any  ex- 
hibitor, upon  payment  of  the  stipulated  Hcense  fee  is  at 
hberty  to  rent  the  film. 

In  our  opinion  the  offer  of  the  prints  by  the  exchanges 
to  the  exhibitors  constitutes  a  pubUcation  within  the 
meaning  of  the  act. 

The  date  of  the  first  pubhcation  is  the  first  day  upon 
which  exhibitors  may  obtain  the  prints,  which  is  ordi- 
narily called  in  the  trade  the  release  date. 

There  is  good  authority  to  sustain  this  position.  In 
cases  where  books  containing  the  ratings  of  merchants 
were  leased  for  a  stated  term  to  any  and  all  persons  who 
accepted  them  at  the  proprietor's  terms,  and  where  title 

^HJoltsberger  v.  AUine  (1887),  The  sale  of  a  single  copy  of  the 

33    Fed.    (C.    C.)    381.      Where  song  was  held  sufficient  to  con- 

phiintifT  had  sold  several  copies  stitute  a  publication, 
of     his     work     hefon;    ol)taining  See    also:    Pnhncr    v.    DeWitt 

copyright,  this  was  a  publication,  (1872),  47  N.  Y.  532;  Tompkins 

and    he    could    not    restrain    de-  v.  llalUck  (1SK2),  133  Mass.  32; 

fendants   from    infringing.  Carter  v.  Bailey  (1874),  G4  Me. 

Stern     v.    Jerome    11.    Remick  461. 
(1910),    175    Fed.    (C.    C.)    282. 


PTTnUfATlON 


:)().': 


remained  as  well  in  the  ere 
there  was  a  i)uhh{'ation.'° 

*°  Jewelers  Mercanlilc  Agenc]i 
V.  Jeicelers  (ISOS),  loo  \.  Y.  241; 
49  N.  K.  872.  If  a  Ixtok  he  put 
within  roach  of  the  geiioral  public 
8()  that  all  may  havo  across  to  it, 
no  matter  what  limitations  bo 
placed  upon  tho  uso  of  it  by  the 
inchviihial  subscriiu-r  or  lessee,  it 
is  published,  and  wliat  is  known 
as  the  common-law  coj)yrinht  or 
right  of  first  publication  is  gone. 

Lodd  V.  Oxnard  (189G),  7o  Fed. 
(C.  C.)  703.  Where  a  book  is 
issued  to  subscribers  thereof  and 
whore  there  is  no  limitation  upon 
tho  numl)er  of  persons  to  whom 
the  book  may  l)e  issued,  there  is  a 
"publication"  although  the  books 
are  7wt  sold  and  a  number  of 
restrictions  are  placed  upon  their 
use. 

Ijorrowe-Loisetle  v.  O'Langhlin 
(1898),  88  Fed.  (C^.  C.)  89G.  The 
issuance  of  a  book  to  all  who  sul)- 
scribe  for  a  coui.se  of  instruction 
in  connection  with  the  l)ook 
constitutes  a  publication  thereof. 

For  cases  where  the  jdaciiig  of  a 
irork  in  n  public  office  icas  held 
to  he  a  puhlindion ,  see: 

Wright  V.  lusle  (l<K);i),  S(i  A.  D. 
(X.  Y.)  356;  83  N.  Y.  Supp.  887, 
wliere  the  filing  of  plans  and 
sjMicifications   with  a  pubUc  de- 


dit  agency,  it  \va.^  held  that 

partmont  was  hdil  to  Ik?  publica- 
tion. 

liecs  V.  Peltzer  (1874),  7.")  III. 
475;  where  the  filing  of  a  man- 
uscript map  was  held  a  pubhca- 
tion. 

Vernon  Abstr.  Co.  v.  Wag- 
goner Title  Co.  (1908),  107  S.  \V. 
(Tex.)  919;  where  it  was  held  a 
j)ublication  to  furnish  abstracts 
of  title  to  owners  of  projx'rty. 

D'Ote  V.  Kansas  City  Star 
(1899),  94  Fed.  (C.  C.)  840.  An 
author  leaving  copies  of  a  book 
in  a  pul)lic  place  or  giNing  them 
away  "  pul)lishos." 

8ec  also:  Kiern/in  v.  Man.  Tel. 
Co.  (187()),  50  How.  Pr.  (\.  Y.) 
194. 

Hut  see:  Stecher  v.  Dunstan 
(1910),  233  Fed.  (D.  C.)  tiOl: 
whore  the  sending  of  samples  was 
hold  not  to  con.stitute  publication, 
and  MeDermotl  v.  lid.  of  Trade 
(lOOC),  140  Fed.  (C.  C.  A.)  9«)1. 
and  Falk  v.  Cast  (1893),  rA  Fed. 
(C.  C.  A.)  890. 

As  to  the  publication  of  a 
painting  si'o:  Pierce  v.  Werck- 
meister  (1890),  72  Fo<l.  (C.  ('.  A.) 
54,  rev.  (1S94),  0;i  F(xl.  (('.  ('.) 
445,  and  Am.  Tobacco  Co.  v. 
W.rckmeisttr  (1!K)7),  207  U.  S. 
284;  28  Sup.  Ct.  72;  WerckineiJiter 


506 


THE    LAW   OF   MOTION   PICTURES 


It  is  not  necessary  that  a  sale  be  consummated  to  con- 
stitute publication.  Where  the  work  is  exposed  to  the 
general  public  ^^  ''so  that  all  may  have  access  to  it,  no 
matter  what  hmitations  be  put  upon  the  use  of  it  by  the 
individual  subscriber  or  lessee,  it  is  published."  ^- 

Where  an  author  pubhshes  or  consents  to  the  publica- 
tion of  his  work  without  complying  wdth  the  statute, 
publication  constitutes  dedication  to  the  public. ^^ 


V.  Am.  Lith.  Co.  (1904),  134  Fed. 
(C.  C.  A.)  321;  Turner  v.  Robinson 
(Irish)  (1860),  10 Ir.  Ch.  Rep.  121, 
and  Prince  Albert  v.  Strange  (Eng.) 
(1849),  1  Mac.  and  G.  23. 

See  in  this  connection:  Gross- 
man V.  Canada  Cycle  Co.  (Can.) 
(1902),  5  Ont.  L.  R.  55.  The 
maiUng  and  even  delivery  of  a 
large  number  of  copies  of  an 
American  newspaper  in  England 
to  subscribers  thereof  was  held 
not  to  be  a  publication  since  the 
work  was  not  made  available 
to  the  general  pul)lic.  See  also: 
Francis  Day  &  Hunter  v.  Feld- 
man  &  Co.  (Eng.)  (1914),  2  Ch. 
728;  83  L.  J.  Ch.  900;  111  L.  T. 
521. 

="  Bkistein  v.  Dnnnldson  (1903), 
188  U.  S.  2.39;  23  Sup.  Ct.  298; 
rev.  104  Fed.  (C.  C.  A.)  993. 
"There  was  no  publication  until 
they  wore  exi)oso(l  to  the  general 
f)uhlic,  so  that  the  piil)lic,  without 
discrimination     as     to     jjcrHons, 


might  enjoy  them."     (Argument 
of  counsel.) 

'2  Jewelers  Mercantile  Agency 
v.  Jewelers  (1898),  155  N.  Y. 
241;49N.E.872. 

^^Wheaton  v.  Peters  (1834), 
8  Pet.  591;  Bartlette  v.  Crittenden 
(1847),  4  McLean,  300;  Same  v. 
Same  (1849),  5  McLean,  32; 
Boxicicault  v.  Fox  (1862),  5  Blatch. 
(C.  C.)  87;  Parton  v.  Prang 
(1872),  3  Cliff.  (C.  C.)  537;  Bouci- 
cault  V.  Hart  (1875),  13  Blatch. 
(C.  C.)  47;  Clemens  v.  Belford 
(1883),  14  Fed.  (C.  C.)  728; 
Potter  V.  McPherson  (1880),  21 
Hun  (N.  Y.),  559;  Oertel  v. 
Jacoby  (1872),  44  How.  Pr.  (N. 
Y.)  179;  Wa/jner  v.  Conried 
(1903),  125  Fed.  (C.  C.)  798; 
State  V.  State  Journal  Co.  (1905), 
106  N.  W.  (Nebr.)  434. 

Wall  V.  Gordon  (1872),  12 
Abb.  Pr.  (N.  S.)  N.  Y.  349. 
I'laintiff,  ('oin|)oser  and  owner  of 
the  copyright  in  a  song  "When 


PUBLKAI'ION 


507 


In  Univerml  Film  Co.  v.  Cupperman,'^^  a  motion  j)icture 
was  manufactured  in  Denmark.  C'()])ics  of  tlie  film  were 
sold  to  i)urchasers  in  different  countries  of  Europe,  and 
the  contract  of  sale  ])rovide(l  that  tlie  prints  sold  to  the 
purchaser  would  not  be  ex])orted  or  sold  for  exjjort  to 
any  other  country;  i.  c.,  the  right  to  represent  the  photo- 
play was  limited  to  the  country  wherein  the  sale  took 
place. 

The  film  was  not  copyrighted  in  any  of  the  countries 
wherein  it  was  sold.  Subsequently  to  such  sales  and  on 
Novem])er  10,  1912  the  photoi)lay  was  copyrighted  in  the 
United  States,  but  hi  the  preceding  September  one  of 
the  ])rints  had  been  purchased  by  one  of  the  defendants 
in  England  without  any  knowledge  of  the  restriction 
contained  in  the  original  contract  of  sale.  This  film  was 
exhibited  in  the  United  States  before  copyright  registra- 
tion. 


The  Band  Begins  to  Play,"  had 
tho  same  printed  in  sheet  music 
form  and  phiced  200  copies  in 
the  hands  of  \Vripf)ert  &  Co., 
music  dealers  in  Ivondon,  for 
vSale,  with  written  instructions 
not  to  sell  any  of  them  until 
Sept  11,  1871.  He  came  to  the 
United  States  and  secured  copy- 
right on  Sept.  9,  1871.  Before 
leaving  ICngland  he  had  exposed 
for  sale  cupics  of  the  song  with- 
out the  music. 

Held  that  there  was  a  jjuhlica- 
tion  and  a  dedication  to  the 
public. 


IIohncf<.  V.  Donahue  (1896),  77 
Fed.  (C\  ('.)  179.  The  publica- 
tion in  a  magazine  of  a  story  in 
.serial  form  without  first  deposit- 
ing the  title  jus  recjuired  by  the 
then  existing  statute  wa-s  held 
to  be  a  dedication  of  the  work. 

^*  Unipersdl  Film  Co.  v.  Cop- 
])ermnn  (1914),  212  Fed.  (D  C.) 
301 ;  afT'd  218  Fetl.  (C.  C.  A.)  .577. 

See  in  this  connection:  Dali/ 
V.  Wdlmtli  (1S99),  40  A.  1).  (X. 
V.)  220.  Where  there  had  been 
publication  of  the  work  in  Ger- 
many all  common-law  rights  were 
destroyed. 


508  THE    LAW   OF   MOTION    PICTURES 

The  court  held  that  the  sale  of  prints  of  the  films  in 
Europe  constituted  a  pubhcation  of  the  film,  and  that 
since  no  copyright  had  been  secured  in  the  film  in  Europe, 
the  work  fell  into  the  pubhc  domain. 

Even  if  copyi-ight  had  been  secured  in  every  country 
wherein  the  film  had  been  so  sold  and  exhibited,  and  all 
such  countries  came  within  Section  seven,  Subdivision  B 
of  the  Act  (granting  protection  to  foreign  authors  or 
proprietors  of  works),  the  pubhcation  of  the  film  in  this 
country  in  September,  1912,  without  securing  copyright 
therein  under  our  statute  nevertheless  amounted  to  a 
dedication  of  such  motion  picture. ^^ 

The  com-t  defines  pubhcation  in  the  following  language: 

''If  there  be  such  a  dissemination  of  the  thing  under 
consideration  among  the  public  as  to  justify  the  belief, 
that  it  took  place  with  the  intention  of  rendering  the  work 
common  property  then  publication  occurred." 

In  discussing  the  question  whether  the  sale  of  films  as 
in  this  action  amounted  to  a  publication  the  court  states : 

"I  do  not  see  what  more  the  Nordisk  Company  could 
have  done  toward  disseminating  its  work  than  to  sell  it 
everywhere  in  Great  Britain  and  Europe  with  knowledge 
that  the  play  would  he,  performed  and  the  films  shown 
over  most  of  the  civilized  world.  I  do  not  think  it  makes 
any  difference  that  each  purchaser  agrees  not  to  use  out 
of  his  own  country  or  to  sell  for  export;  it  is  proven  that 

•"  Sec  in  tliis  connection :    The  uiithors  as  are  saved  by  statute 

Mihulo    ('nae    (18S.5),    2o    F(h1.  tiro    not    rccofrnizod    cxtra-torri- 

((!.  (,'.)  183.    It  is  immaterial  in  toriully.     They  can   only   he  cn- 

what  country  pul)lication   of  the  forced  in  the  sovcrciffuty  of  tiicir 

work  is  made.      "Sucli  rights  of  origin," 


IM  HLICATION  509 

more  tliuu  a  inoiitii  beiore  registration  in  the  United 
States  there  was  nothing  to  prevent  anybody  in  any  i)art 
of  Europe  from  buying,  using  and  seeing  this  photoplay. 
How  pubUcation  eould  be  plainer  I  do  not  pereeive.  .  .  . 
Because  there  was  a  i)ul)heation  in  Europe  before  regis- 
tration in  the  United  States  this  bill  must  be  dismissed." 

In  Ferris  v.  Froliman  ^^'  a  play  eallcd  ''The  Fatal  Card" 
was  first  pul)liely  j)erformed  in  England.  At  the  time 
of  such  performance  a  statute  was  in  force  in  England 
under  which  the  first  public  presentation  of  a  dramatic 
e()mi)()siti<)n  was  declared  to  be  in  the  construction  of  the 
act  eciuivalent  to  the  first  pu])licati()n  of  a  book.  Com- 
plainants' play  was  never  in  fact  pubUshed,  but  on  the 
contrary  was  kept  in  manuscript  form. 

The  complainant  Frohman  was  granted  an  exclu.sive 
license  to  perform  the  play  in  the  United  States  for  a 
specified  period.  The  play  was  not  copyrighted  in  this 
country,  although  produced  on  the  stage. 

Thereafter  the  defendant  made  an  adaptation  of  the 
English  play  for  which  he  secured  American  copyright. 

Tliis  action  was  brought  in  the  state  court  to  protect 
complainants'  conmion-law  rights  in  their  mipublished 
manuscript.  Defendants  contentled  that  the  presentation 
upon  the  stage  of  the  play  in  England  having  been  a 
publication  thereof  under  the  English  Statute  in  force 
at  the  time,  complainants  had  lost  their  conmion-law 
rights  in  such  play;  and  since  the  play  had  not  been  copy- 
righted in  this  country  there  was  a  dedication  to  the 
pubhc. 

^*  Ferris  y.  Frohman  (\912), •2'2:i  (11)09),  238  111.  430;  87  N.  E. 
U.  S.  424;  32  Sup.  Ct.  2G3;  alTg      327. 


510  THE    LAW   OF   MOTION   PICTURES 

The  United  States  Supreme  Court  held  that  in  order 
to  constitute  an  abandonment  of  common-law  rights 
ttiere  must  be  a  pubUcation  of  the  work  in  the  sense  that 
publication  has  been  estabhshed  by  the  common  law,  to 
wit:  reproduction  of  the  work  in  copies  for  sale.  That 
since  the  play  had  not  been  printed  and  published  no 
pubUcation  had  taken  place ;  that  the  EngHsh  Parhament 
could  at  its  pleasure  define  pubUcation  and  impose  such 
other  restrictions  upon  the  common-law  rights  of  the 
author  as  it  deemed  fit,  but  that  such  modifications  could 
have  no  extraterritorial  effect,  and  that  the  American 
courts  were  not  bound  to  accept  such  changes  in  the 
common  law.  In  other  words,  that  while  such  repre- 
sentation in  England  amounted  to  a  pubUcation,  it  did 
not  amount  to  pubUcation  so  far  as  this  country  was 
concerned.    In  the  words  of  the  court: 

''When  Section  20  of  the  Act  of  5  and  6  Vict.  C.  45 
provided  that  the  first  public  performance  of  a  play  should 
be  deemed  equivalent  in  the  construction  of  that  act, 
to  the  first  publication  of  a  book,  it  simply  defined  its 
meaning  with  respect  to  the  rights  which  the  statutes 
conferred.  The  deprivation  of  the  common-law  right  by 
force  of  the  statute,  was  plainly  limited  by  the  territorial 
bounds  within  which  the  operation  of  the  statute  was 
confined." 

Section  139. — Notice  of  copyright. 

The  statute  docs  not  provide  for  any  notice  of  copy- 
right in  the  case  of  works  copyrighted  as  unpublished 
works.  Hence  no  notice  of  copyright  is  rociuh'cd  on  mo- 
tion pictures  which  are  copyrighted  as  unpublished  works. 


NOTICE   OF   COPVKKiHT 


11 


Where  the  copyright  is  secured  by  pubUcation,  the 
notice  of  copyright  must  be  inserted  on  each  and  every 
copy  of  the  work  in  strict  compliance  with  Section  eight- 
een of  the  Act.'^' 

Section  eighteen  provides  that  the  notice  shall  consist 
either  of  the  word  "Copyright"  or  the  abbreviation 
"C()l)r. "  accompanied  by  the  name  of  the  copyright 
l)r()i)net()r.  Where  the  work  is  a  printed  literar>',  musical, 
or  dramatic  work,  the  notice  must  also  include  the  year 
hi  which  copyright  was  secured  by  publication. 

Since  a  motion  picture  is  hot  a  printed  work  in  the 
hteral  sense  that  the  word  printed  is  used  throughout 
the  Act,  it   would   seem  that   the  copjTight   notice  af- 


"5a/(A-.s  V.  Manchester  (1888), 
128  U.  S.  244;  9  Sup.  Ct.  36. 
"It  has  prcscril^cd  such  a  method, 
and  that  method  is  to  be  followed. 
No  authority  exists  for  obtain- 
ing a  copyright,  beyond  the 
extent  to  which  Congress  has 
autliorized  it.  A  copyright  can- 
not l)e  sustained  as  a  right 
existing  at  common  law;  i)ut  tu« 
it  exists  in  the  United  States, 
it  depends  wholly  on  the  Legisla- 
tion of  Congress.  .  .  ." 

Mijilin  y.  White,  Mifflin  v. 
Dutton  (HK)2),  190  U.  S.  260- 
265;  23  Sup.  Ct.  769-771.  The 
statute  with  res|X)ct  to  form  of 
copyright  notice  must  be  com- 
plietl  with,  "in  substance  at 
least."    Sec  Thompsun  v.  Ilubbiird 


(1889),  131  U.  S.  123;  9  Sup.  Ct. 
710. 

Pierce  v.  Wercknicister  (1896), 
72  Fed.  (C.  C.  A.)  54.  "To 
secure  a  statutory  copyright  under 
the  laws  of  the  U.  S.,  all  the  pre- 
scribed reijuisites  of  the  statute 
must  be  complied  with.  Whealon 
V.  Peters,  8  Pet.  591,  6(U;  Parkin- 
son V.  Lasclle  (1875),  3  Sawy. 
330,  332,  Fed.  Ctus.  No.  10,7()2 
(C.  C);  BoiiciaiuU  v.  Hart 
(1875),  13  Blatchf.  47,  50,  Fed. 
Cas.  No.  1,692  (C.  C);  Laurence 
V.  Dana  (1869),  4  Cliff.  1,  60, 
Fed.  Cas.  No.  8,  136  (C.  C.)." 
See  ii\so.  Jackson  v.  TKa/lA-ic  (1886), 
29  Fed.  (C.  C.)  15;  Bluine  v. 
Si>car  (1887),  30  Fed.  (C.  C.) 
629. 


512  THE    LAW   OF   MOTION   PICTURES 

fixed  to  published  motion  pictures  does  not  require 
the  inclusion  of  the  year  when  first  pubhcation  took 
place. 

The  question  as  to  the  proper  form  of  notice  to  be 
placed  on  motion  pictures,  has  not  yet  come  before  the 
courts;  and  in  \'iew  of  the  fact  that  the  word  printed  may 
be  construed  as  applying  to  positive  films  it  is  advisable 
to  add  to  the  copyright  notice  the  year  when  first  pub- 
lication took  place. 

Section  eighteen  also  pro\ades  that  in  the  case  of  works 
specified  in  subsections  (f)  to  (k)  of  Section  five,  the 
notice  may  consist  of  the  letter  "C,"  mclosed  within 
a  circle,  accompanied  by  the  initials,  monogram,  mark 
or  symbol  of  the  copyright  proprietor,  providing  his 
name  shall  appear  on  some  accessible  portion  of  the  work. 
As  motion  pictures  are  classified  under  subsections  (1) 
and  (m)  of  section  five,  the  proprietor  of  a  motion  picture 
may  not  insert  such  a  form  of  notice,  at  any  rate,  not  if 
his  motion  picture  was  copyrighted  subsequent  to  August 
24,  1912  when  the  "Townsend  Bill"  was  approved,  pro- 
viding for  the  separate  copyrighting  of  motion  pictures, 
and  creating  two  new  classes  of  copyrightable  works  to 
wit,  "(1)  Motion-picture  photoplays;"  and  "  (m)  Motion- 
pictures  other  than  photoplays." 

Prior  to  that  amendment  of  the  Copyright  Act,  motion 
lectures  were  copyrighted  as  i)hot()graphs,  and  as  photo- 
graphs were  copyrighted  under  subsection  (j)  such  form 
of  notice  was  proper. 

The  copyright  notice  should  l)e  inserted  immediately 
after  the  title  of  the  motion  picture  and  should  ivdd  as 
follows: 


NOTICE    OF    COPYRIGHT 


513 


"Copyright  or  Copr.  191-  (insert  proper  yearj  hy 
A.  B.  (insert  proper  name)" 

The  notice  need  not  be  plaeed  upon  the  copies  de- 
posited with  the  Register  of  Copyrights, -^^  but  it  must 
appear  on  all  the  j)ubHshed  coj)ies  of  the  work  during 
tlie  full  term  of  the  copyright. 

in  a  case  where  the  assignee  of  the  copyright  had 
omitted  to  print  it,  he  was  held  debarred  from  enjoining 
his  very  assignor  for  infringement.^^  Its  purpose  is  to 
inform  the  public.'"  It  should  above  all,  be  legible/'  and 
its  legibility  is  a  question  for  the  jury.''^ 


^* Osgood  V.  .1.  .S'.  Aloe  Instru- 
vieid  Co.  (1S97),  83  Fed.  (C.  C.) 
470;  Werckmeisler  v.  Am.  Lith. 
Co.  (1905),  142  Fed.  (C.  C.)  827, 
lia.s  oven  gone  so  far  as  to  hold 
tluit  the  notice  of  copyriglit  nocd 
not  he  placed  upon  the  original 
where  the  same  is  a  painting. 

"  Thompson  v.  Hubbard  (1SS9), 
131  U.  S.  123;  9  Sup.  Vt.  710. 
"It  is  not  enough  that  Thompson 
wliile  he  owned  the  copyright 
gave  the  reriuired  notice  in  the 
copies  of  every  edition  he  pub- 
lished, while  it  was  his  copyright. 
The  inhibition  of  the  statute  ex- 
tended to  and  operated  upon 
Hubbard  while  he  owncil  the 
copyright  in  resj)ect  to  the  copies 


of  every  edition  which  he  pul>- 
lished,  and  for  liis  failure  he  i.s 
debarred  from  maintaining  his 
action." 

<»  liurrow-Cnle-s  Lith.  Co.  v. 
Sarotii/  (LS84),  111  U.  S.  53;  4  Sup. 
Ct.  279;  Pierce  v.  Werckmeisler 
(1896),72Fed.  (C.  C.  A.)M. 

*' Alfred  Decker  Co.  v.  Etchi- 
son  (191.5).  225  Fed.  (D.  C.)  135. 
The  notice  printed  on  the  work 
wius  .so  small  and  blurred  that  in 
the  language  of  the  court  it 
coulil  only  lie  discovered  "with 
a  microscope,  by  a  person  skilled 
in  the  art."  Held  that  an  inno- 
cent infringer  who  upon  learning 
that  the  work  was  copyrighted 
iminediatelv  cea.<ed  his  infringe- 


<^Bolles  V.  Oxding  Co.  (lcS97). 
77   Fed.    (C.   C.   A.)  906;  aff'd 


(1S99),  175  U.  S.  262;  20  Sup.  Ct. 
94. 


514 


THE    LAW   OF   MOTION    PICTURES 


While  the  statute  calls  for  strict  compliance,  the  courts 
have  gone  very  far  in  formulating  the  rule  of  "substantial 
compliance." 

Callaghan  v.  Myers,'^^  the  leading  case  in  the  country, 
held  that  a  variation  of  one  year,  reducing  the  term  of 
copyright  for  that  period,  was  immaterial.  On  the  other 
hand  it  was  held  that  a  variation  of  one  year  lengthening 
the  term  of  copyright  to  that  extent,  was  material  and 
invalidated  the  copyright. ^^ 


A 


ment  would  not  be  compelled 
to  pay  damages,  but  that  he 
would  be  enjoined. 
■^  Straiiss  V.  Pen  Printing  Co. 
(1915),  220  Fed.  (D.  C.)  977. 
Plaintiff's  photograph  contained 
a  copyright  notice  consisting  of 
"C."  The  mark  was  blurred. 
All  that  could  be  seen  upon  in- 
spection was  a  small  blurred  print 
mark  the  outline  of  which  was 
roughly  scmi-circulur  in  shape, 
with  the  arc  uppermost.  Held 
under  section  twenty  of  the  act 
that  the  copyright  was  not  in- 
validated, and  that  complainant 
could  recover  for  infringement, 
after  actual  notice./- The  court 
did  not  award  any  damages  to 
complainant  but  allowed  com- 
plainant, defendant's  profits  as 
well  as  costs. 

"Callaghan  v.   Myers   (1888), 
128  U.  S.  617;  9  Sup.  Ct.   177. 

A  reporter  of  law  books  con- 


taining the  judicial  opinions  of 
the  judges  has  no  copyright  in 
those  opinions,  although  he  has 
such  copyright  in  the  matter 
therein  which  is  the  result  of  his 
own  intellectual  labor. 

A  variance  of  one  year  in  the 
dates  between  the  deposit  and 
the  notice  of  copyright  printed 
in  the  book  is  not  a  material 
variation,  in  this  instance,  be- 
cause the  statement  on  the  book 
purported  to  lessen  the  life  of 
the  copyright  by  one  year,  so 
that  the  public  would  not  be 
injured.  The  title  was  actually 
deposited  in  1SG7  and  the  notice 
read  ISOO. 

Held  also  that  when  the  title 
was  d(^iK)sited  by  E.  li.  Myers 
&  Chandler  and  the  notice  read 
E.  li.  Myers,  the  variation  was 
immaterial. 

**Iiaker  v.  Taylor  (1848),  2 
lilatch.   (C.  C.)   182.      PlaintifTs 


NOTICE  Ol   <  oi'vkr;ht 


r,i. 


Moti(^ii  picture  ijroducers  have  frequently  used  the 
word  "'Copyrighted"  instead  of  "Copyright"  as  pro- 
vided by  the  statute,  in  the  notice.  Althouf^h  the  use 
of  the  word  "Copyrighted"  has  been  held  to  be  substan- 
tial compliance  with  the  statute, ""^  its  use  should  be 
avoided. 

The  full  meaning  of  the  notice  is  that  the  coi)yright 
is  owned  by  the  person  whose  name  is  inserted  in  the 
copyright  notice/  The  notice  does  not  necessarily  imply 
that  the  person  mentioned  in  the  copjTight  notice  is  the 
one  who  originally  secured  the  copyright.  It  does  not 
necessarily  mean  that  the  work  is  copyrighted  by  the 
person  therein  mentioned.     To  sustain  this  interpreta- 


puhlished  ;i  book  and  in  tlie  copy- 
riglit  notice  inserted  tlie  year  1847 
a.s  the  date  of  publication  instead 
of  the  1S46,  the  correct  date. 

Held  that  unless  there  was  a 
strict  compliance  with  the  stat- 
ute no  copyright  was  secured; 
that  the  failure  to  publish  a 
notice  in  accordance  with  the  act 
whether  caused  through  inad- 
vertence or  intentionally  were 
fatal. 

The  court  said:  "...  I  think 
the  {joint  is  placed  beyond  (iue.s- 
tion  that  the  failure,  in  the  pres- 
ent case,  to  publish  the  notice 
demanded  by  the  act,  in  the 
manner  directed,  creates  a  fatal 
defect  in  the  plaintiff's  title. 
Even  thougli  the  failure  to  pub- 


lish the  statutorj'  notice  aro.se 
from  mistake,  this  court  would 
have  no  p<jwer  to  accept  the  in- 
tention of  the  party,  in  place  of  a 
jK'rformance,  any  more  in  respect 
to  the  insertion  of  that  notice 
on  the  proper  page,  than  in  re- 
s|)ect  to  the  deix)sit  of  the  title 
of  the  book." 

*■■>  Folk  V.  Shumaclier  (1891), 
48  Fed.  (C.  C.)  222.  The  fol- 
lowing notice  wa.s  held  to  be  a 
substantial  compliance  with  the 
statute.  "1SS!K  Cupy righted  by 
/>'.  ./.  F(dk:' 

SiH>  al.so:  Record  &  Guide  Co. 
V.  liromlnj  (1010),  17')  Fed. 
(C.  C.)  1 ')(')•  where  the  notice 
wius:  "Copyrighted  1907  by  C.  W. 
Sweet." 


516 


THE    LAW    OF   MOTION    PICTURES 


tion  of  the  meaning  of  the  notice,  reference  may  be  had 
to  that  section  of  the  Act  which  provides  that  an  assignee 
of  a  copyi'ight  may  insert  his  name  in  place  and  stead 
of  that  of  his  assignor.  When  such  substitution  takes 
place,  the  notice  does  not  imply  that  the  work  was  copy- 
righted by  the  assignee,  but  it  does  convey  the  meaning 
that  the  copyright  is  owned  by  such  assignee. 

An  abbreviation  of  the  date  is  substantial  compHance,''^ 
likewise  of  the  Christian  name."*^  Nor  do  additional 
words  harm  the  notice  ^^  in  every  instance.  The  exact 
part  of  the  page  upon  which  the  notice  appears  is  im- 
material.''^ -i-. 


'^Snow  V.  Mast  (1895),  65 
Fed.  (C.  C.)  995.  Where  the 
j'ear  in  a  copyright  notice  is  al> 
breviated  to  read  as  follows: 
'"94"  there  is  a  substantial  com- 
pliance with  the  statute. 

Bolles  V.  Outing  Co.  (1897), 
77  Fed.  (C.  C.  A.)  966;  aff'd 
175  U.  S.  262;  20  Sup.  Ct.  94. 
Where  the  notice  of  copyright 
read  as  follows:  "Copyright  93, 
by  Bolles,  Brooklyn"  it  was  held 
sufficient. 

"  Burrow  Giles  v.  Sarony 
(1883),  17  Fed.  (C.  C.)  591; 
aff'd  (1884),  111  U.  S.  53;  4 
Sup.  Ct.  279.  Where  the  notice 
contain.s  the  initial  of  the  Chris- 
tian name  and  the  full  surname 
there  is  a  compliance  with  the 
statute. 

*»  Hills  V.  Amtrich  (1903),  120 


Fed.  (C.  C.)  862.  A  notice  read- 
ing: "Copyright  1902,  published 
by  Hills  &  Co.,  Ltd.,  Londoit., 
England,"  was  held  a  sufficient 
compliance  with  the  statute. 

See  also:  Hills  v.  Hoover  (1905), 
136  Fed.  (C.  C.)  701. 

Hejel  V.  White  Land  Co.  (1893), 
54  Fed.  (C.  C.)  179.  Where 
copyright  notice  contains  all  the 
words  required  by  the  statute 
it  is  sufficient  even  though  ad- 
ditional words  are  added.  Such 
additional  words  arc  treated 
merely  as  surplusage. 

The  notice  here  contained  the 
additional  words,  "Civil  En- 
gineer" i)rintcd  immediately  after 
the  name  of  the  copyright  pro- 
prietor. 

'0  Bliimc  V.  Spear  (1.SS7),  30 
Fed.    (C.    C.)    029.      Copyriglit 


SYLTJiiBUS  OF  CASE  OF  gREY  ENVELOPE 


The  label  afl   orlp;lnally  ore- 
sented  had  G  in  circle  with  Initials 
and  date,  biat_  without  name  on  another 
Dart  of  the'*label.   This  wsb  Insuf- 
ficient notice  of  copyright  name  on 
package  containing  the  labelled  goods. 
Having  uublished  thus,  refiling  with 
original  notice  blocked  out  and  nrooer 
notice  including  applicant's  name  sub- 
stituted does  not  warrant  r*  glstration. 
When  applicant  published  without  proper 
notice  he  lost  right  to  claim  protection 
under  Copyright  Act  and  such  right 
could  not  be  rnvlved  by  publication  with 
Proper  notice. 


NOTICE    OF   COP'i'EIGnT 


517 


The  date  itself  may  be  in  ara))ie  or  in  Roman  numerals, 
as  Judge  Learned  Hand  has  reeently  lield.'" 

Copyright  is  not  lost  where  the  notice  has  been  omitted 
by  accident  or  mistake  from  some  of  the  copies, ^^  or 
where  a  change  was  made  therein  after  the  work  left 
the  hands  of  the  copyright  proprietor. •'- 

Section  twenty  provides  that:  "where  the  copjTight 
proprietor  has  sought  to  comply  with  the  provisions  of 


was  not  lost  by  placing  the  proper 
copyright  notice  below  the  first 
page  of  music. 

'">Steni  V.  Remick  (1010),  17;') 
Fed.  (C.  C.)  282.  "Nor  do  I 
find  any  difficulty  in  deciding  that 
Roman  numerals  conform  to  the 
notice  prescribed  by  the  statute. 
Roman  numerals  are  a  part  of 
the  language  of  this  country. 
They  are  constantly  in  use  upon 
monumental  architecture  of  all 
sorts  and  for  serial  purpo.ses  upon 
books,  and  they  are  a  part  of  the 
language  as  taught  in  the  public 
schools,  and  understood  by  all 
but  the  most  illiterate.  Nor  can 
one  seriously  contend  that  the 
notice  rccjuircd  by  the  statute 
would  be  fuHillcd  only  by  Arabic 
numerals.  If  the  letters  were 
written  out  in  words,  it  would 
certainly  be  a  compliance.  I 
regard  the  writing  of  it  here  in 
Roman  numerals  as  more  nearly  a 
literal  compliance  with  the  statute 
than  to  write  out  tlievcar  in  words." 


^'Slecher  v.  Dunston  (1916), 
233  Fed.  (D.  C.)  GOl.  The  omis- 
sion by  accident  or  mistake  of  the 
notice  from  particular  copies 
does  not  invalidate  the  copy- 
right or  pre\'ent  a  recovery  after 
actual  notice  of  the  copyright. 

See  also:  Merriam  Co.  v.  United 
Dictionary  Co.  (1907),  208  U.  S. 
260;  28  Sup.  Ct.  290;  afT'g  (1906), 
146  Fed.  (C.  C.  A.)  354.  The 
omission  of  the  notice  in  the  Eng- 
lish edition  of  an  American  work 
which  was  to  be  sold  only  in 
iMigland  did  not  invalidate  the 
copyright. 

'■'  Fnlk  V.  Cast,  .54  Fed.  (C.  C. 
A.)890;afT'g48Fed.262.  "If the 
proper  statutory  notice  of  copy- 
right was  upon  each  copy  as  it  left 
the  control  and  ownership  of  the 
proprietor  of  the  copj'right  he 
cannot  be  responsible  for  any 
changes  which  were  afterwards 
improvidently  made  upon  a  par- 
ticular copy  before  it  c^xme  into 
the  hands  of  the  last  purchaser." 


S 


518  THE    LAW   OF   MOTION    PICTURES 

the  Act  with  respect  to  notice,  the  omission  by  accident 
or  mistake  of  the  prescribed  notice  from  a  particular 
copy  or  copies  shall  not  invalidate  the  copyright  or  pre- 
vent recovery  for  infringement  against  any  person  who, 
after  actual  notice  of  the  copyright,  begms  an  under- 
taking to  infringe  it." 

The  section  further  provides  that  there  shall  be  no 
recovery  of  damages  against  an  innocent  infringer  who 
has  been  misled  by  the  omission,  and  that  the  court  may 
in  its  discretion  refuse  a  permanent  mjunction  against  an 
innocent  infringer  unless  the  cop>Tight  proprietor  shall  re- 
imburse him  for  his  reasonable  outlay  innocently  incurred. 

But  a  notice  reading  "Registered  3,693,  1883"  was 
held  insufficient  and  an  abandonment  ''^  as  were  several 
other  notices  which  showed  great  discrepancies  in  the 
dates  ^'^  and  in  the  form  of  notice  generally. ^^ 

"Higgins  v.  Keufel  (1887),  Where  at  the  head  of  the  first 
30  Fed.  (C.  C.)  627;  aff'd  (1891),  column  on  the  first  page  of  read- 
140  U.  S.  428;  11  Sup.  Ct.  731.  ing  matter  the  title  of  a  periodical 

"  Record  &  Guide  Co.  v.  Brom-  was  inserted,  and  followed  by 
ley  (1910),  175  Fed.  (C.  C.)  156.      two  lines  in  the  following  manner: 

' ' Copyright  hy  the  Real  Estate  Record  and  Huildcr's  Ciiidc  Co. 
Vol.  LXXV. May  6,  1905. No.  1938, 

f-^  Lydinrd- Peterson    v.     Wood-      or    "coJitenls    covered    hij    copy- 
man  (1913),  204  Fed.  (C.  C.  A.)      rights       Held      non-compliance 
921.      The    notice    was    ''Copy-      with  statute. 
right  1908,  Draim  bij  J.  C.  Wood-  So  also  whore  the  notice  was 

many     Held,  improper.  inserted  at  the  foot  of  each  page 

Record  &  C, Hide  Co.  \.  Bromley  and  read:  ''The  tcrt  of  these 
(1910),  175  Fed.  (C.  C.)  156.  pages  are  copyrighted.  All  rights 
Where  the  notice  inserted  on  the  reserved.  Notice  i.s  hereby  given 
front  page  above  the  title  and  that  infringement  will  lead  to 
read:  "The  entire  contents  of  prosemtion ."  Such  notice  wa.s 
thin  paper  covered  l>y  copyright"       invalid. 


licensee's  failure  to  insert  notice  ■'>I'.t 

III  Ildds  V.  Fctsl,  the  complainant  had  used  liis  own 
name  in  registering  his  copyright,  but  had  inscribed  upon 
the  work,  as  part  of  the  notice,  a  trade-name,  the  use 
of  which  was  in  violation  of  the  laws  of  his  state.  It  was 
held  that  this  invalidated  his  copyright.^'' 

Under  Section  eighteen  of  the  Act,,  where  copjTight 
subsisted  in  a  work  at  the  time  the  present  act  went  into 
effect,  the  notice  may  be  in  the  form  ])rescribed  l)y  that 
Act  or  in  that  prescribed  by  the  Act  of  June  18,  1874. 

It  would  seem  under  Section  nine  that  the  notice  of 
copjTight  is  required  to  be  affixed  only  to  those  copies 
of  the  work  ''published  or  offered  for  sale  in  the  United 
States."  For  that  reason  positive  prints  made  for  ship- 
ment without  the  United  States  do  not  require  the  notice 
to  be  affixed  thereon.  ^'^'' 

Section  140. — Licensee's  failure  to  insert  notice. 
^     The  proprietor  of  the  copyright  does  not  lose  his  rights 
thereto  or  dedicate  the  work  where  he  gives  a  license 

such  notice  was  heUl  invalid  upon  it  from  Mijer.<i  v.  Callaghan  where 

.     the  j^ruunJ  that  it   was  the  evi-  tlie  year  of  entry  wtvs  designateil 

dent  intention  of  the  author  that  as  ISGO  when  in  fact  it  was  en- 

the  date  contained  in  the  second  tered  in   1S67.  thereby  abridging 

line  was  not  to  he  considered  the  the     copyright     one     year     and 

date  of  tlic  copyright.  harming  nobody. 

Jackson  v.    Wnlkie    (1S8G),  21)  ^  Haas    v.    Feist    (1916),    2;Vt 

Fed.   (C.  C.)    1.').     The  book  in  Fed.   (D.  C.)    105;  on  reheariim 

question     contained    the    notice  2;U  Fetl.  100. 

"Kntircd  according  to  act  of  con-  ••''  See  in  this  connection:  Ihuj- 

gress,  in  the  year  1S7S,  hi/  11.  A.  gard  v.  Warerly  (1905),  144  Fctl. 

Jackson."  (C.  C.)  490. 

Held  insufficient,  distinguishing 


520  THE    LAW   OF   MOTION    PICTURES 

to  publish  the  work  upon  the  express  condition  that  a 
proper  copyright  notice  be  affixed  to  each  and  every  copy 
of  the  work,  and  such  condition  is  subsequently  breached 
by  the  licensee.  The  wrongful  act  of  the  Hcensee  does 
not  forfeit  the  licensor's  right. 

"The  copyright  of  the  appellee  was  property  of  which 
it  could  not  legally  be  deprived  without  its  consent.  Title 
to  copyright  is  no  more  lost  by  the  theft  of  the  manuscript 
or  piratical  publication  of  it  than  is  one's  title  to  a  horse 
by  the  stealing  of  it  or  by  the  unlawful  sale  of  it  to  a 
stranger."  " 

An  innocent  party  who  believes  such  works  to  be  in 
the  public  domain  and  in  good  faith  makes  use  of  it, 
consequently  does  so  at  his  peril. 

On  the  other  hand,  where  the  proprietor  of  the  copy- 
right licenses  another  to  use  the  work,  but  does  not,  in 
his  contract,  provide  that  the  licensee  must  insert  a 
proper  copyright  notice  in  every  published  copy  of  the 
work,  he  loses  his  copyright  when  the  licensee  publishes 
the  work  without  a  proper  notice. 

Section  141.— False  notice  of  copyright. 

Section  twenty-nine  provides  that  any  person  who, 
with  fraudulent  intent  shall  insert  or  impress  any  notice 
of  copyright  or  words  of  the' same  import  ui^on  any  un- 
copyrighted  work,  or  shall  remove  or  alter  the  notice  upon 
a  copyrighted  work,  shall  be  guilty  of  a  misdemeanor. 
This  section  also  provides  that  any  person  who  shall 
knowingly  import,  issue  or  sell  any  uncopyrighted  work 

"/1m.  Press  Ass'n  v.  Daily  (C.  C.  A.)  70G;  Ai)|).  Disni.  liKJ 
Slory  Pub.  Co.  (liK)'2),  120  Fed.      U.  S.  675;  24  Sup.  Ct.  8r>2. 


TITLE — CHANGING    TITLE 


.521 


bearing  such  iiotic(3  shall  be  liable  to  a  fine  therein  speci- 
fied. Section  thirty  ])rohibits  the  importation  of  any 
work  bearing  a  false  notice  of  copyright. 

There  must  be  actual  participation  in  the  wrongful 
act  before  any  liability  will  accrue.''^  The  notice,  how- 
ever, must  contain  all  the  necessary^  elements  prescribed 
by  the  statute  for  a  valid  notice,''^  so  that  if  the  notice  is 
defective  or  insufhcient,  it  may  not  be  said  to  be  a  false 
notice  of  coi)yright.^/- 


Section  142.— Title— Changing  title. 

While  there  is  an  English  case  holding  that  copyright 
protects  the  title  of  a  work,^°  the  great  weight  of  author- 
ity is  just  the  other  way,  and  the  law  may  be  regarded 


'"^Rigney  v.  DiUton  (1S96),  77 
Fed.  (C\  C.)  176.  In  tin  action 
t<)  recover  a  peniilty  under  the 
statute  for  in.^erting  a  false  notice 
of  copyrijj;lit,  it  wa.s  held  .sufficient 
to  maintain  tlie  action  to  allet!;e 
that  defendants  had  prepared  a 
cut  with  the  copyright  notice 
in.scril)ed  thereon  and  caused 
prints  from  said  cut  to  t)e  pub- 
lished jis  part  of  an  advertising 
page  of  a  traile  j>ai)er. 

/erm-  V.  Hnplmrl  (ISOS),  01 
Fed.  (('.  ('.  A.)  rJS.  This  action 
was  brought  under  .section  M)6'.\, 
Hev.  St.,  U.  S.,  as  it  existed  prior 
to  tlie  amendment  of  181)7  to 
recover  |)enalties  for  inserting 
a  copyright  notice  ujxju  an  un- 


copyrighted  hook.  Held  that 
since  defendant  did  not  make 
the  hooks  or  insert  the  notice 
therein  it  was  not  liable  not- 
witiistanding  the  fact  that  de- 
fendant knew  at  the  time  of  the 
sale  of  sudi  books  that  they  con- 
tained a  false  notice  of  copyright. 

See  also:  McLaughlin  v.  Ra- 
phael (190.3),  191  U.  S.  267;  24 
Sui).  Ct.  10.");  afT'g  11.')  Fed.  85; 
Toft  V.  Stei'en.'i  (1889),  38  Fed. 
(C.  C.)  28;  Rigtiey  v.  Raphael 
(1896),77Fed.  (C.C.)173. 

'■»  Iloertel  v.  Raphael  (1899), 
94  Fed.  (C.  C.)  844. 

•0  Weldonv.  Dicks  (l-:ng.)  ( 1878), 
48  L.  J.  (Ml.  201;  10  C'h.  D.  247; 
39  L.  T.  467;  27  W.  H.  639. 


522 


THE    LAW   OF   MOTION   PICTURES 


as  settled  that  the  title  of  a  book  or  motion  picture  has 
no  copyright  protection." 

However,  there  is  one  purpose  for  which  the  copy- 
right law  regards  the  title  as  an  integral  part  of  the  work, 
and  that  is  for  the  purpose  of  identification.  It  does  not 
permit  the  proprietor  to  copyright  the  work  under  one  title 
and  exploit  it  under  another  which  differs  substantially. 
To  do  otherwise  would  defeat  the  whole  purpose  of  notice.^^ 


^'Corbett  v.  Purdy  (1897),  80 
Fed.  (C.  C.)  901;  Glaser  v.  St. 
Elmo  (1909),  175  Fed.  (C.  C.) 
276;  Atlas  v.  Street  &  Smith 
(1913),  204  Fed.  (C.  C.  A.)  398; 
App.  Dism.  231  U.  S.  348;  34  Sup. 
Ct.  73;  Harper  v.  Ranous  (1895), 
67  Fed.  (C.  C.)  904. 

See  also:  Section   121. 

LHck  V.  Yates  (Eng.)  (1881), 
18  Ch.  D.  76;  50  L.  J.  Ch.  809; 
44  L.  T.  660.  Plaintiff  in  1881 
had  copyrighted  his  l)()()k  under 
the  title  of  "Splendid  Misery." 
The  court  held  that  there  could 
be  no  copyright  in  the  title  of  a 
book. 

See  Crotch  v.  Arnold  (Kng.) 
(1909),  54  S.  J.  49. 

'^^  Collier  v.  Imp.  (1913),  214 
Fed.  (D.  C.)  272.  After  a  dra- 
matic composition  was  copy- 
righted under  tli(!  name  A  White 
Slave's  Love,  the  work  was  i)ro- 
duced  under  the  title  The  Under- 
tow. Hough,  .1.: 


"I  am  not  satisfied  that  an 
author  can  copyright  a  play 
under  one  title,  produce  it  under 
another,  and  hold  as  an  infringer 
a  person  who  has  been  misled 
by  his  actions.  But  I  am  not 
called  upon  to  determine  that 
question,  as  it  does  not  arise 
upon  these  pleadings.  The  l)ill 
avers  that  the  defendant  produced 
the  complainant's  work  with 
full  knowledge  of  all  the  facts. 
As  to  such  person  I  think  it  clear 
that  an  author  or  assignee  does 
not  forfeit  a  copyright  by  a 
change  of  the  title  of  the  work." 

See  also:  Blame  v.  Spear 
(1887)  .30  Fed.  (C.  C.)  f>29:  "  If, 
however,  the  orator  pul)Iished  the 
composition  under  a  title  dilTerent 
from  that  by  which  he  copy- 
righted it,  in  substance,  he  would 
thereby  pr()l)ai)ly  so  depart  from 
his  copyright  that  he  would  leave 
the  composition  to  the  public. 
Drone,  Copyrights,  140,  142." 


TITLE- 


^HANOTNO    TITLE 


523 


But  an  immatorial  variatic 
misled  will  not  vitiate  the  c 


)n  whereby  none  is  apt  to  be 
opyright.®'^ 


See  in  this  connection:  Calign 
V.  Inter  Ocean  Newnjxqyer  Co. 
(liKJ?),  l-)7  Fed.  (C.  C.  A.)  18(i. 

'^^  Donnelli/  v.  /j-er.s  (1882), 
18  Fed.  (D.  ('.)  r)92.  A  book 
was  registered  for  copyrip;ht  under 
the  title  Orer  One  Thoumnd 
Recipes,  The  Lnkc-^uk  Coak- 
Book;  a  complete  Manual  of  Prac- 
tical, Economical,  Palatable  and 
Healthful  Cookery,  Chicago: 
Donnelley,  Loyd  &  Co.,  1S7S. 
The  book  was  subsequently  pub- 
lished under  the  title  The  Lake- 
Side  Cook  Book,  Xo.  1;  a  complete 
Maniud  of  Practical,  Economical 
and  Palatable  and  Healthful  Cook- 
ery. By  N.  A.  D.,  with  place  of 
publication  and  name  of  proprie- 
tor and  notice  of  copyright.  In 
an  action  to  restrain  defeiulant 
from  infringing  it  was  held  the 
variance  was  not  material. 

Carle  v.  Erans  (1886),  27  Fed. 
(('.  C.)  861.  The  name  of  the 
filed  title  here  was:  Piano-fntc 
ArrangemetU  of  the  Comic  Opera, 
The  Mikado,  or  the  Town  of  Titipu, 
by  W.  S.  (iitl)ert  and  Sir  Arthur 
SuUiran.     Hy  Cenrge  L.  Tracy. 

The  printed  book  wa«  Voc(d 
Score  of  the  Mikado,  or  The  Town 
of  Titipu.  A  rrangement  for  Piaiuh- 
forte  by  (Jeonjv  Lowell   Tracy   {of 


Boston,  U.  S.  A.)  of  the  above- 
nnmed  opera  by  W .  S.  C$ilbert 
and  Arthur  SuUiran. 

Subseciuently  another  edition 
wa.s  published  in  which  the  words 
"Piano-forte  Score^'  were  sul> 
stituted  for  the  words  "  Vocal 
Score." 

Held  no  substantial  difference 
in  the  titles,  as  "The  publLshetl 
title  is  suflicient  to  identify  it  with 
substantial  certainty  with  the 
registered  cojjyright,  and  no  one 
could  possibly  be  misled  by  the 
variations  between  the  two." 

Patter.'ion  v.  Ogilvic  Pub.  Co. 
(1!)()2).  110  Fed.  (C.  C\)  4ol. 
The  title  of  a  work  depositee!  in 
accordance  with  the  statute  read : 

The  Captain  of  the  Rajah.  By 
Howard  Patterson.  lilustrateil 
by  Warren  Sheppard.  A  thrilling 
and  realistic  sea  story  from  a 
noted  sailor's  pen,  and  lavi.shly 
illustrated  by  the  pencil  of 
America's  greatest  marine  artist. 

The  b(X)k  was  publishetl  with 
tlie  following  title: 

The  Captain  of  the  Rajah. 
.[  Story  of  the  Sea,  by  Howard 
Patterson.  Illustratetl  by  War- 
ren Sheppard. 

Held  that  tlie  .shortening  of 
title  did  not  invalidate  copyright. 


524  THE    LAW    OF   MOTION    PICTURES 

Under  the  old  Acts  where  deposit  of  the  title  of  the 
work  was  the  first  step  to  secure  copyright,  the  law  per- 
mitted a  change  in  the  title  of  the  work  between  such 
deposit  and  publication,  if  we  may  accept  Black  v.  Allen 
as  an  authority.*^' 

Section  143. — Who  may  secure  copyright. 

Although  the  Act  does  not  expressly  so  provide,  citizens 
of  the  United  States  are  entitled  to  secure  copyright. 

The  rights  of  an  alien  to  enjoy  copyright  are  governed 
by  Section  eight  of  the  Act. 

That  section  provides  that  the  copyright  secured  by 
the  Act  shall  extend  to  the  work  of  an  author  or  proprie- 
tor who  is  a  citizen  or  subject  of  a  foreign  state  or  nation 
only  when  the  alien  author  or  proprietor  shall  be  domiciled 
within  the  United  States  at  the  time  of  the  first  publica- 
tion of  the  work;  or  when  such  foreign  state  or  nation 
grants  either  l)y  treaty,  convention,  agreement  or  law  to 
citizens  of  the  United  States  the  benefit  of  Copyright  on 
substantially  the  same  basis  as  to  its  own  citizens,  or 
copyright  protection  substantially  equal  to  the  protec- 
tion secured  to  such  foreign  author  under  the  Act  or  by 
treaty;  or  when  such  foreign  state  or  nation  is  a  party 

Daly    V.    WebMer    (1892),    r)0  toward    obtaining    a    copyright 

Fed.  (C.  C.  A.)   is:}.     A  leading  and  tlic  actual  publication  of  the 

ca.se  on  this  proposition.  book.     I  do  not    think   that  the 

^*  Black  V.  Allen  (189.'{),  .%  courts  should  hold  tliat  such 
Fed.  (C.  C.)  764.  "It  is  ca,sily  change  of  title  renders  a  copy- 
seen  that  an  author  may  find  it  right  invalid,  unless  compelled 
to  his  advantage  to  diange  the  to  do  so,  and  I  do  not  think  they 
title  of  his  work  between  the  are  so  compelled." 
time  of  his  taking  liis  first  step 


WHO    MAY    SKCUHK    COI'VUIGHT 


525 


to  ail  iiiU'i'iialioiiiil  aj^rceinciit  whicli  providt's  U)r  rccijjroc- 
ity  in  the  granting  oi  copjTight,  by  the  temi«  of  which 
agreement  the  United  States  may  at  its  pleasure,  become 
a  i^arty  thereto. 

Tlie  section  further  provides  that  the  existence  of  the 
reciprocal  conditions  aforesaid  shall  be  determined  by 
the  President  of  the  United  States,  by  proclamations 
made  from  time  to  time.*'^ 


«'  Opinion  of  U.  S.  Attorney 
Clcncral,  dated  May  6,  1911,  29 
Opinions  of  Atty.  Oen'l,  p.  64. 

"  1:  It  is  the  duly  of  the  Presi- 
dent to  determine  and  proclaim 
what  foreign  countries  grant  to 
tlie  citizens  of  the  United  States 
rights  similar  to  those  specified 
in  section  1  (e). 

2:  A  proclamation  of  the  Presi- 
dent may  be  made  retroactive 
in  that  it  may  determine  that 
cither  of  the  conditions  have  been 
complied  with  since  a  specified 
date  and  thereupon  the  citizens 
or  subjects  of  the  country  re- 
ferred to  in  the  proclamation 
will  be  entitled  to  avail  themselves 
of  our  copyright  from  the  six?cific 
(late  mentioned  in  the  proclama- 
tion. 

(iermany  having  comiilicd  with 
one  or  more  of  the  conditions 
of  Section  8,  on  or  before  July  1, 
1909,  a  Oerman  citizen  could  from 
that  date  acquire  all  the  rights 


of  our  law  (except  those  in  Sec- 
tion 1,  e)  by  publishing  with 
copyright  notice  and  complying 
with  the  terms  of  the  law.  Hut 
lie  could  not  secure  registration 
of  his  copyright  until  after  the 
proclamation  of  April  9th,  1910. 

If  an  action  were  instituted 
between  July  1,  1909,  and  April  *), 
1910,  it  might  be  maintained  by 
proof  of  registration  after  April  9, 
1910. 

In  an  action  for  an  infringe- 
ment committed  between  July  1, 
1909,  and  April,  1910,  the  in- 
fringer would  not  have  an  equi- 
table defense  on  the  grouiui  that 
at  the  time  of  the  infringement 
he  did  not  have  any  Jegitimate 
notice  of  the  existence  of  the 
copyright.  The  notice  of  copy- 
right printed  on  the  published 
copies  would  be  notice  that  the 
copyright  proprietor  claims  that 
one  of  the  conditions  of  Section  S 
have  been  complied  with.    Every- 


520 


THE    LAW   OF   MOTION    PICTURES 


The  proclamation  is  conclusive  evidence  of  the  exis- 
tence of  reciprocal  conditions,  and  the  courts  will  not 
review  it.  The  reciprocal  conditions  will  be  presumed  to 
continue  to  exist  until  the  President  by  proclamation 


one  must  be  aware  that  the 
absence  of  the  proclamation  is 
not  conclusive  evidence  that  the 
reciprocal  conditions  have  not 
been  complied  with. 

3:  With  reference  to  Section  1 
(e)  Germany  complied  with  the 
condition  on  September  9,  1910, 
and  the  proclamation  was  issued 
on  December  8,  1910,  but  it  does 
not  recite  that  the  condition  was 
complied  with  prior  to  its  date. 
Hence  there  is  not  sufficient 
evidence  of  the  compliance  with 
the  condition  prior  to  the  date 
of  the  proclamation  to  maintain 
an  action  for  an  infringement 
committed  between  the  two  dates. 

4:  As  to  the  question  whether 
a  German  citizen  could  acquire 
the  right  specified  in  Section  1  (e) 
prior  to  September  •),  1910,  it  is 
clear  that  it  could  not  be  acquired 
prior  to  that  date.  Prior  to  the 
conipiiance  by  Germany  with  the 
condition  of  Section  I  (e),  the 
condition  of  the  German  citizen 
with  regard  to  that  right  was  the 
same  as  if  the  act  did  not  exist. 

Fr(U<er  v.  Yack  (1902),  IH', 
Fed.   (C.  C.  A.)  285.     "At  tlie 


date  of  this  contract.  May  8, 
1890,  copyright  was  not  author- 
ized in  this  country  in  favor  of 
foreign  authors  (Rev.  St.,  Sec. 
4952);  nor,  as  it  would  seem 
could  a  foreign  author  assign 
or  transfer  to  a  citizen  his  manu- 
script or  common-law  right  of 
property  therein,  so  that  the  lat- 
ter could  have  copyright  protec- 
tion within  the  United  States. 
Yiiengling  v.  Schile,  12  Fed.  97, 
102-107.  The  international  copy- 
right law  granting  coi)yright  to 
foreign  authors  was  passed 
March  13,  1891,  and  went  into 
effect  July  1, 1891.  26  Stat.  1100- 
1110,  c.  565." 

See  also:  BoucicauU  v.  Delaficld 
(Eng.)  (1863),  1  H.  &  M.  597. 
Where  the  author  of  a  play  known 
as  "The  Colleen Bawn"  filed  a  bill 
to  restrain  a  piratical  production. 
It  appeared  that  the  play  had 
first  been  represented  in  New 
York,  and  by  reason  of  that  fact 
— there  being  no  copyright  con- 
vention with  the  United  States^ 
it  was  held  that,  under  the  stat- 
ute (S.  19,  Act  7  &  8  Vict.,c.  12) 
there  was  no  playright  in  l''.ngland. 


BELLIGERENT   ALIENS 


527 


declares  tlie   ccssatioii  of   the  existence  of  such  condi- 
tions.'^ 


Section  144.— Belligerent  aliens. 

In  time  of  war  the  status  of  the  belhgerent  alien  is 


^Chappell  V.  FicULs  (1914), 
210  Fed.  (C.  C.  A.)  864.  Sec- 
tion eight  of  the  1909  act  re- 
sixjctiiiK  rif^hts  of  uhen  authors 
construed. 

"On  April  9,  1910,  President 
Taft  issued  a  proclamation  stating 
that  citizens  of  Great  Britain 
were  entitled  to  the  benefit  of 
our  copyright  law,  with  an  e.\- 
eeption  ncjt  material  in  this  case. 
This  proclamation  is  conclusive 
evidence  of  the  fact  that  Great 
Britain  at  that  date  gave  our 
citizens  the  benefit  of  her  copy- 
right laws  on  substantially  the 
same  basis  as  to  her  own  citizens 
and  tlie  courts  have  no  right  to 
review  it.  .  .  .  Congress,  in 
our  opinion  has  confided  the  whole 
subject  to  the  FACcutive  exclu- 
sively. The  president  is  rec[uirccl, 
by  proclamation,  to  determine 
from  time  to  time,  as  the  purposes 
of  the  act  may  require,  the  ex- 
istence of  these  reciprocal  condi- 
tions. As  no  proclamation  has 
been  made  since  that  of  April  9, 
1910,  we  are  bound  to  presume 
that  in  the  opinion  of  the  Execu- 


tive   the.se    conditions    do    still 
exist." 

Bong  v.  Campbell  Art  Co. 
(1908),  214  U.  S.  236;  29  Sup.  Ct. 
028;  atT'g  Ifw  Fed.  (C.  C.  A.)  110; 
10  Ann.  Cas.  1120.  The  courts  will 
not  take  judicial  notice  that  a  for- 
eign country  is  a  party  to  an  in- 
ternational agreement  which  pro- 
vides for  recipnjcity  in  the  grant- 
ing of  copyright,  by  the  terms  of 
which  agreement  this  country 
may  at  its  pleasure  become  a 
party.  Such  condition  must  l>e 
determined  by  a  Presidential 
proclamation. 

See:  Bong  v.  Campbell  Art  Co. 
(190S),  214  U.  S.  236;  29  Sup.  Ct. 
028;  alTg  155  Fed.  (C.  C.  A.)  116; 
16  Ann.  Cas.  1 126.  Under  Section 
4952  of  the  Revised  Statutes  as 
amended  by  the  Act  of  March  3, 
1891,  the  a.s.signee  of  an  author 
wa.s  not  entitled  to  copyright  of 
the  work  unless  such  author  him- 
self would  have  been  entitletl  to 
take  out  such  copyright. 

To  the  .same  effect  Yiwngling 
V.  Schile  (1882),  12  Fed.,  (C.  C.) 
97. 


528 


THE    LAW   OF   MOTION    PICTURES 


changed.  His  copyright  is  not  lost,  although  it  becomes 
liable  to  seizure.  "During  the  war  the  property  of  alien 
enemies  is  subject  to  confiscation  jure  belli,  and  their 
civil  capacity  to  sue  is  suspended."^'  The  declaration  of 
war  does  not  in  itself  work  a  confiscation  of  the  cop^Tight, 
for  an  Act  of  Congress  is  necessary  to  bring  about  this 
result.^^  But  it  suspends  the  remedies  of  the  copjTight 
owner,  so  that  he  may  neither  sue  on  his  contract,  hcense 
or  royalty  agreement,  nor  maintain  an  action  for  in- 
fringement.^^ He  may,  however,  be  sued  in  the  courts 
of  this  country  (the  essential  jurisdictional  facts  being 
present)  by  an  American  citizen.'" 


"  Judge  Story  in  Fairfax  v. 
Hunter  (1813),  7  Cranch,  603. 

See  also:  Opinions  of  Attor- 
ney General,  Vol.  22,  p.  268 
(1898). 

Held  that  tlic  copyrights  of 
Spanish  subjects  during  the  ex- 
istence of  a  state  of  war  between 
this  country  and  Spain  were 
suspended. 

«8  Brown  v.  United  States  (1814), 
8  Cranch,  112;  Distinglon  Hema- 
tite V.  PoHsehl  (Eng.)  (1916),  32  T. 
L.  R.  349. 

^*  Watts  V.  Unione  (191.5),  224 
Fed.  (D.  C.)  192;  aff'd  229  Fed. 
136.  "Where  therefore  such  a 
contract  ha.s  been  entered  into 
with  an  alien  enemy  before  the 
outbreak  of  the  war,  and  has  been 
IK-rfitrnied  on  his  side,  the  war 
merely  .suspend.s  his  remedy;   in 


other  words,  he  cannot  sue  upon 
it  during  the  existence  of  hostili- 
ties." 

Cohen  v.  Mutual  Life  (1872), 
50  N.  Y.  616.  "All  intercourse, 
commercial  or  otherwise,  between 
them  is  unla\N^ul;  and  all  con- 
tracts existing  at  the  commence- 
ment of  the  war  suspended,  and 
all  made  during  its  existence 
void.  ..." 

Sands  v.  N.  Y.  Life  Ins.  Co. 
(1872),  50  N.  Y.  632.  "Clearly 
it  is  not  law,  nor  do  these  or  any 
recognized  authorities  intend  to 
hold  that  a  valid  debt  i)y  note, 
bond  or  contract,  existing  when 
the  war  began  .  .  .  was  nullified 
by  the  war.  The  debt  is  sus- 
pended until  i)eace  returns." 

■"'Watts  V.  Unione  (1915),  224 
Fed.  (D.  C.)  192;  alT'd  22'.)  I'ed. 


BELLIGERENT   ALIENS  .721) 

As  betwoon  two  belligerents  suing  each  other  in  the 
courts  of  this  country,  it  is  always  discretionary  with 
the  United  States  Courts  whetlier  or  not  they  will  (Miter- 
tain  jurisdiction."'  That  cjuestion  is  eliminated,  however, 
the  moment  the  United  States  enters  the  war  with  one 
of  the  belligerents. 

If  the  cop}Tight  of  the  work  is  technically  in  the  name 
of  a  domestic  corporation,  but  all  or  the  great  majority 
of  the  stockholders  and  directors  are  enemy  ahens  re- 
siding in  the  belligerent  countrj^  the  courts  will  un- 
doubtedly follow  the  doctrine  expressed  in  Daimler  v. 
Continental  Tire  Rubber  Co.,''-  and  hold  the  company 
disqualified  to  sue.  The  English  courts  have  consistently 
held  to  the  rule  that  outward  semblances  must  be  dis- 
regarded, and  that  the  ultimate  disposition  of  the  prop- 
erty remains  the  chief  element  for  the  court's  considera- 
tion."^ 

136.     "It  is  apparent  therefore  114  L.  T.  1040;  32  T.  L.  R.  624. 

that    to    hold    that    a    .subject's  Tlie  company  was  declared  under 

right  of  action  in  his  own  coun-  a   (hsal)ihty   to  sue  on  a   trade 

try    against   an    alien   enemy    is  debt,     Baron     Reading     holding 

susiK-'ntled,   would    be   to   defeat  that  to  jx;rmit  such  suit  would  be 

the  very  object  of  the  suspen-  to   sanction    "trading   with    the 

sory  rule,  and  to  turn  a  disability  enemy." 
into  a  relief."  ^^  Stephen  M.  Weld  v.  FruJiling 

"  liichanls  V.  Wrcschier  (1915),  (1916),  32  T.  L.  R.  469;  Moss  v. 

156   X.    Y.    Supp.    10.54;   Kaiser  7)om//i»c  (1916),  32  T.  L.  R.  ;M3. 

Williclin     II     (1916),    230    Fed.  In   this   connection   the  decision 

(D.    C.)    717;    Walts    v.    Unione  of   Judge   McAvoy   of   the   City 

(1915),   224   Fed.    (D.   C.)    192;  Court  of  the  City  of  New  York 

aff'd  229  Fed.  136.  is  of  interest,  but  we  are  unable 

'-  Daimler    Co.    v.    Continental  tt)  agree  with  the  learned  court  in 

Tire   Rubber   Co.    (Eng.)    (1916),  its  conclusions  therein  expressed. 


530 


THE   LAW   OF   MOTION    PICTURES 


Copyright  owned  by  partners,  one  or  more  of  whom 
is  a  resident  of  the  belhgerent  country,  comes  withm  the 
rule  of  disabihty."^  Such  partners  do  not  necessarily 
have  to  be  belhgerents,  for  even  a  citizen  of  this  country 
who  resides  in  the  belligerent  country  during  the  war  is 
treated  on  a  par  with  a  belligerent  alien.'^^ 

Agency  between  a  belligerent  alien  residing  in  his 
country  and  an  enemy  alien  residing  in  this  country  is 
not  affected  by  the  war;'^  but  the  declaration  of  war  ipso- 
facto  terminates  the  agency  between  such  belligerent 
alien  and  an  American  citizen  residing  in  this  country, 
just  as  it  terminates  partnerships  under  the  same  cir- 
cumstances^^  Where  the  agency  sm'vives,  an  American 
may  pay  over   royalties  to   such   resident   agent, "^  al- 

Schulz    V.   Ravnes,  N.   Y.    Law         ^<^  Hubbard  v.  Mathews  (1873), 

54  N.  Y.  43.  "Moneys  received 
by  such  an  agent  are  lawfully 
paid  and  lawfully  received,  though 
a  remittance  by  him  to  his  enemy 
principal  would  be  unlawful." 

Buchanan  v.  Curry  (1821),  19 
Johns.  (N.  Y.)  137.  "The  rule 
is  founded  in  public  policy,  which 
forbids  during  war,  that  money 
or  other  resources  sluill  hv  trans- 
ferred, so  as  to  aid  or  strengthen 
our  enemies.  The  crime  con- 
sists in  exporting  the  money  or 
property,  or  jilacing  it  in  the 
I)()wer  of  the  enemy;  not  in  de- 
livering it  to  an  alien  enemy, 
or  his  agent,  residing  here,  under 
the  control  of  our  own  govern- 
ment." 


Journal,  Apr.  19,  1917. 

'^  G.  Candilis  &  So7i  v.  Harold 
Victor  &  Co.  (Eng.)  C.  A.  (1916), 
W.  N.  424.  Two  of  the  partners 
were  residents  of  Trebizond,  Black 
Sea,  which  is  a  part  of  Turkey, 
with  whom  England  was  waging 
war. 

"  Porter  v.  Freudenberg  (Eng.) 
(1915),  112  L.  T.  It.  313. 

'« Porter  v.  Freudenberg  (Eng.) 
(1915),  112  L.  T.  R.  313. 

"  I)is(ingto7i  Hematite  Co.  v. 
Posschl  (lOng.)  (191()),  32  T.  I>.  R. 
349;  Cohen  v.  Muliuil  Life  (1872), 
.50  N.  Y.  610.  "All  existing 
jjartnerships  between  (citizens  or 
sui)jccts  of  Uie  two  countries  arc 
dissolved.  .  .  ." 


liELLlGLUENT   ALIENS  531 

though  the  agent  is  not  permitted  to  remit  them  to  his 
principal."'^ 

To  remit  royalties  direct  to  the  belligerent  alien  is 
treasonable.  This  prohibition  extends  not  only  to  Amer- 
ican citizens,  but  as  well  to  all  aliens  residing  here.*" 

The  right  of  a  licensee  of  a  belligerent  copyright  pro- 
prietor to  sue  for  infringement  here  during  the  war  is 
not  easy  to  define.  The  question  seems  to  be  complicated 
enough  in  times  of  peace,^'  but  becomes  doubly  so  on  a 
declaration  of  war.  However,  the  rule  may  be  adduced 
that  in  cases  where  the  licensee  is  required  to  join  his 
belligerent  proprietor  as  a  party  he  may  not  sue;  but 
where  his  hcense  is  so  broad  that  it  may  be  regarded  in 
law  as  an  assignment,  he  may  enforce  all  his  rights  in 
the  American  courts,  irrespective  of  the  belligerent  origin 
of  his  grant,  provided,  of  course,  that  he  is  not  himself 
an  enemy  alien. 

Great  Britain  passed  a  statute  on  August  10,  1916 
with  respect  to  copyright,  in  its  nature  supplementary 

"  United   Slates    v.    Grcnthonse  owes    a     local     and     ternijorary 

(lSO;i),  4  Sawyer,  472.    "Where-  allegiance,  which  continues  dur- 

ever  overt   acts  are  committed,  ing  the  period  of  his  residence." 

which    in    their    natural    conse-  »'  Tally  v.    Triangle   Film   Co. 

quence,   if  successful,  would   en-  (1916),   229   Fed.    (D.    C.)    297; 

courap-  and  advance  the  interests  Xcw  Fiction  Pub.  Co.  v.  Star  Co. 

of   the  rehcllioii,  in  judgment  of  (1915),   220    Fed.    (D.    C.)    994; 

law  aid  and  comfort  are  given."  Aaronson  v.  Fleckenstein   (1886), 

See      Foster's     CVown      Law,  2.S  Fed.   (C.  C.)  75;   Wooster  v. 

217.  Crane  (1906),  147  Fed.  (C.  C.  A.) 

»o  Carlisle      v.      United     States  515;    Saake    v.    Uderer    (1909), 

(1S72),  1(3  Wall.  147.    "An  alien,  174  Val  (C.  C.  A.)  135. 

wiiile  domiciled   in   the  country  See  also  Section  161. 


532  THE    LAW   OF   MOTION    PICTURES 

to  the  Trading  with  the  Enemy  Act  of  1914,  wliich  greatly 
simpUfies  these  questions.  Under  the  terms  of  the  Act 
the  Pubhc  Trustee  or  Custodian  is  vested  with  title  in 
all  such  copyrights,  and  holds  the  same  until  the  end  of 
the  war.^-  The  act,  however,  is  limited  to  such  works  as 
are  first  published  or  made  in  the  enemy  country,  and 
makes  no  mention  of  works  first  pubhshed  in  England 
before  the  war  and  owned  by  enemies.  It  is  the  disposi- 
tion of  this  class  of  copyrights  which  raises  the  greatest 
problems. 

Section  145. — In  what  name  copyright  may  be  taken  out. 

The  copyright  need  not  necessarily  be  taken  out  in 
the  name  of  an  individual.  It  may  be  obtained  m  the 
co-partnership  or  firm  name  of  the  individual,  or  even 
in  a  trade  name  or  an  assumed  partnership  name.^^  A 
corporation  may  likewise  be  the  proprietor  of  the  copy- 
right.^' 

But  there  is  a  Hmitation  on  this  rule.    The  trade  name 

82  Chapter   32,   G  &  7  Geo.  5  Scribner  v.  Allen  Co.  (1892),  49 

(1910).    An  Act  to  make  provision  Fed.   (C.   C.)   854;   Wcrchncisler 

with    respect    to     Copyright    in  v.  Sirriiiger  Lilh.  Co.   (1894),  03 

Work.s  first  Pubhshcd  or  made  in  Fed.  (C.  C.)  808;  Rock  v.  Lazarus 

an  enemy    country    During   tlie  (Eng.),   Law    Reiwrts,    15    Eq. 

Present  War.  Cases,    104;     Wcldon    v.     Dicks 

"'Section  23  of  the  Copyright  (I^ig.)   (1.S7S),  Law  Reports,   10 

Act   of    1909;   Scribner  v.   Clark  Cli.  Div.  247;  Fruit  Cleaning  Co. 

(1888),    .50    Fed.     (C.    C.)    473,  v.     Fresno    Home    Packing    Co. 

aff 'd  as  Belford  v.  Scribner  ( 1 89 1 ) ,  (1899) ,  94  Fed.  (C.  C.)  845. 
144    U.    S.    488;     12    Sup.    Ct.  *"  Nal'l  Cloak  &  Suit  v.  Kauf- 

734;  Callaghan  v.   Mycrx  (1888),  man    (1911),    189    Fed.    (C.    C.) 

128  U.  S.  G17;   9  Siq).  Cl.    177;  215. 


IN    WHAT    NAME    COPYRIGHT    MAY    UK    TAKEN    OUT      533 

or  firm  iiunic  must  be  one  which  the  individual  has  a  lawful 
right  to  use. 

The  assumption  of  a  "nom  de  plume"  does  not  confer 
anj'  pjoater  rights  upon  the  author  than  the  use  of  his 
own  name.*^' 

Haas  V.  Feist  ^'  was  an  action  for  the  infringement  of  a 
song.  The  complainant's  assignors  had  taken  out  copy- 
right in  the  name  (jf  Deutsch  &  Cahalin,  but  they  had 
neglected  to  file  a  certificate  with  the  County  Clerk  giving 
the  names  and  addresses  of  the  members  of  the  firm,  as 
required  by  the  New  York  Statute.  The  court  on  re- 
hearing, held  that  inasmuch  as  this  was  a  violation  of 
the  State  statute,  it  went  to  the  essence  of  the  copyright 
and  destroyed  it.  The  complainants  could  not  obtain 
the  jirotection  of  the  law  in  the  very  act  of  doing  some- 
thing illegal. 

This  decision  may  have  a  far  reaching  effect.  Sup- 
pose a  motion  ])icture  company  has  been  using  a  trade 
name  which  is  in  unfair  competition  with  another,  and 
while  so  doing,  and  before  injunction  is  granted,  it 
takes  out  copyright  in  its  trade  name  in  numerous  pic- 
tures.    Would  that  destroy  the  copyright?     We  think 

"  Clemens     v.     Belford     (The  work  is  dedicated  to  the  public, 

"Mark  Twain"  Ca.se)  (1S8.3),  14  tlic  defendant  was  at  liberty  to 

Fed.  (('.  ('.)  72S.     liy  adopting  jmblisli  copies  of  it  with  the  nom 

the noni deplume  "Mark Twain,"  tie  plume  and  all,  as  long  a.s  it 

he    acfjuircd    ncr   greater    right.s  did  not  hold  out  to  the  public 

than    he    would     have    had     in  something  as  having  been  written 

his    own    name.      For    exclusive  which  was  in  fact  not  written  by 

monopoly  in  his  pul)lished  work  the  plaintiff, 

the  author  must  look  to  the  copy-  ^' Huns    v.    Ftisl    (1«)16),    2.31 

right    statutes,    and    where    the  Fed.    (D.   C.)    105. 


534  THE    LAW    OF   MOTION   PICTURES 

it  would.  In  the  Haas  v.  Feist  case  the  violation  was  of  a 
penal  statute.  In  the  supposititious  case  there  is,  however, 
only  the  violation  of  the  civil  law.  The  courts  may,  and 
we  beheve,  will  follow  the  rule  enunciated  by  Judge  Hand. 

Section  146. — Subjects  of  copyright — In  general. 

Section  four  of  the  Act  provides  that  the  works  for 
which  copyright  may  be  secured  under  the  Act  shall  in- 
clude all  the  writings  of  an  author. 

A  hterary  work  need  not  be  of  the  highest  class  of 
literature  in  order  to  be  copjTightable,^^  nor  must  it  be 
altogether  an  original  work. 

It  is  the  arrangement,  combination  and  development 
of  the  theme  which  call  for  the  exercise  of  skill  and  in- 
genuity on  the  part  of  the  author  that  establishes  his 
right  to  copyright  therein.^^  Even  if  the  material  with 
which  he  works  is  hackneyed,  but  he  makes  a  new  ar- 
rangement of  it,  he  is  entitled  to  copyright  the  work.    The 

^'' Atlas     V.     Street     &     Smith  some   labor   and   skill,   sufficient 

(1913),  204  Fed.  (C.  C.  A.)  398;  to  warrant  copyright. 

App.  Dism.  231U.  S.  348;34Sup.  Lawrence   v.    Dana    (1869),    4 

Ct.  323.  (^liff.  1,  Fed.  Cas.  No.  8136  (C. 

See  also:  Henderson  v.  Tomv  C).    Held  that  where  the  author 

kinK    (1894),    GO    Fed.    (C.    C.)  of  a  hook  took  the  material  from 

758.  sources   common    to   all    writers, 

«*  Lover     v.     Dnrldnon     (Eng.)  if  he  arranged  and  (U)ml)ined  the 

(1856),  1  C'.  li.  N.  S.  182.    Where  material  in  a  now  way  and  if  he 

one  takes  an  old  song  which  is  exercised  skill  and  discretion  in 

in  the  public  domain  and  emhel-  his    indopondent    work    he    was 

lishes  it  with  an  original  arrange-  entitled   to  protect  the  work  by 

ment  and  new  accompaniments,  copyrigiil. 

the  work  ac(iuires  originality  and  See  ScM-tion  l.")?  fi>r  detailed  dis- 

cu.ssion. 


What  is  "Indelicate  and  Vulgar"? 

This  morning,  in  looking  up  a  copyright 
question,  I  came  across  a  mid-Victorian  de- 
cision that  constitutes  a  striking  illustration  of 
how  "times  do  change.' 

In  Broder  v.  Zeno  Mauvais  Music  Com- 
pany, 88  Federal  Reporter,  74,  the  learned 
judge  said,  with  reference  to  an  attempted 
copyright  of  what  he  calls  "an  indecent 
song": 

"I  am  of  till'  opinion  that  (he  word  'iiottcst.' 
ns  used  in  the  cliorns  of  tiic  son^  'Dora  Dean." 
has  an  indclicati'  and  vulvar  nit-anin^'.  and  that 
for  that  rt'ason  the  st>nK  cannot  be  protect»'<I  by 

eop.vrijilit." 

Frar.L    M      n,,L« 


N.  / 

Goody;    Goody 
I  have  noticed  in  one  of  the  appe 
ports  of  the  state  of  Pennsylvania,  a 
teresting  divorce  case.     Although  the 
were  too  good,  they  were  unable  to  ge 
Rex  Earl  Toogood  v.    Ethel  August 


good. 


Maurice  G.  Weinberg. 
Philadelphia, 

Making  It  Hot  for  Him 


IMMORAL    AM)    SKDI'lMorR    WORKS 


535 


test  is  not  originality  of  thrmo,  hut  originality  of  plan, 
arran^cnicnt ,  dcvclopniont,  treatment  and  ('()nil>ination.**' 

Section  147.     Immoral  and  seditious  works. 

On  l)road  i)rinciples  of  puhlie  policy  (•()i)yright  will  not 
protect  a  work  which  is  immoral  or  treasonahle.^"  This 
was  recently  illustrated  in  a  case  wherein  the  proprietor 
of  the  copyright  in  a  novel  sought  to  restrain  the  exliibi- 
tion  of  a  motion  picture.  The  court  held  that  as  the 
novel  was  immoral,  copyright  protection  would  be  denied 
it,  and  no  injunction  would  he  granted.^'  And  the  same 
rule  was  held  to  apply  where  the  love  affairs  of  a  notorious 
courtesan  had  been  elaborated  on.^- 

The  principle  is  well  stated  in  a  leading  American  case:'' 

Soo    Section    157   for   dotailod 
discussion. 


"  Hoffman  v.  Le  Tiaunik 
(1913),  20!)  Fed.  (D.  C.)  37.-). 
"To  be  entitled  to  be  copyriglitod 
the  composition  must  be  original, 
nu'ritorious  and  free  from  illegal- 
ity or  immorality.  'And  a  work, 
in  order  to  be  copjTightcd,  must 
be  original  in  the  sense  that  the 
author  has  created  it  by  his  own 
skill,  labor,  and  judgment,  with- 
out directly  copying  or  evasively 
imitating  the  work  of  another.' 
However  'a  new  and  original  plan, 
arrangement  or  combination  of 
materials,  will  entitle  the  author 
to  a  copyright  therein,  whether 
the  materials  themselves  be  new 
or  old.' 

See   in   this  connection:   linkrr 
V.  Seidell  (1S7<)),  101  U.  S.  99. 


Henderson  v.  Tompkins  (1894), 
00  Fed.  (C.  C.)  7.58.  See  on  the 
<luestion  a.s  to  amount  of  origi- 
nality and  literary  cjuality  nec- 
essary to  have  copyrightable 
work. 

»"  Hoffninn  v.  Le  Traunik 
(1913),  209  Fed.  (D.  C.)  .375. 

»'  (Hyn  v.  Western  Feature  Film 
Co.  (Eng.)  (1916),  W.  X.  5;  140 
L.  T.  Jo.  176,  on  the  novel 
"Three  Weeks." 

''•  Stoekdale  v.  Onwhtjn  (Eng.) 
(1,S2()),5  H.  and  ('.  173;  2('.  and 
P.  16;i. 

"  Martinetti  v.  Maguire  (1861), 
Fed.  Ca.s.  No.  9173  (C.  C). 

See    also:    Dunlop    v.    United 


L^,. 


536  THE    LAW    OF  MOTION   PICTURES 

''From  this  it  expressly  appears  that  the  constitution 
did  not  intend  that  Congress  should  pass  laws  to  promote 
immorality  or  anything  except  science  and  the  useful 
arts.  ...  So  a  real  dramatic  composition  if  grossly 
mdecent  and  calculated  to  corrupt  the  morals  of  the 
people,  would  not  be  entitled  to  a  copyright.  Such  an 
exhibition  neither  'promotes  the  progress  of  science  or 
the  useful  arts'  but  on  the  contrary.  The  Constitution 
does  not  authorize  the  protection  of  such  productions, 
and  Congress  cannot  be  presumed  to  have  mtended  to 
have  gone  beyond  their  power  to  give  them  such  pro- 
tection." 

This  would  seem  to  apply  to  motion  pictures,  quite 
u-respective  of  the  question  of  censorship.  One  scene  in  a 
picture,  whether  immoral  or  seditious  would  suffice  to 
destroy  copyright  therein.  But  if  the  objectionable 
scene  or  scenes  are  ehminated,  the  film  may  be  copy- 
righted.^^ 

Section  148. — Gags,  stage  business,  contrivances,  car- 
toons, advertisements. 
It  is  not  always  an  easy  matter  to  determine  what  may 
be  a  proper  subject  of  copyright.  Generally  speaking, 
stage  business,  gags,  gestures,  tricks  of  make-up,  dance 
steps  and  tones  of  voice  are  not  copyrightable,^^ 

States  (1S9G),  105  U.  S.  501;  17  Savage  v.  Hoffman  (1908),  159 

Sup.  C:t.  375.  Fed.  (C.  C.)  .5S4.     Plaint  iff  was 

»*  Brodcr  v.  Zcno  Maurais  Co.  produciiiR    an    operetta    entitled 

(1898),  88  Fed.  (C.  C.)  74.  "The  Merry  Widow."     Defend- 

9'' Chappell    V.    Fields     (1911),  ant  produced  a  vaudeville  sketch 

210  Fed.  (C.  C.  A.)  SCyi.  in  which  two  people  danced  to  the 


GAGS,    ETC. 


same  music  as  in  the  operetta. 
Held  no  injunction. 

"Obviously  the  complainant 
has  no  literary  i)roi)erty  in  the 
manner  in  whieli  liarbanell  and 
Brian  dance.  They  if  anyone 
have  the  right  to  complain.  The 
manner  and  method  of  every 
dancer  and  actor  is  individual, 
and  utterly  unlik(!  the  railroad 
scene  whidi  was  held  the  .subject 
of  literary  property  in  Daly  v. 
Pdlmcr  (1SG8),  G  Blatchf.  (D.  C.) 
2r)G." 

Barms  v.  Miner  (1903),  122 
Fed.  (C.  C.)  4S0.  Plaintiff  and 
defendant  gave  impersonations  on 
tlie  stage  interspersed  with  mo- 
tion pictures  showing  them  chang- 
ing their  costumes.  Each  had 
copyrighted  the  act  as  a  whole. 
//(/(/  that  there  was  no  cau.se  of 
action  as  there  was  nothing  origi- 
nal in  the  act,  and  tliat  such  act 
was  not  a  proper  subject  for  copy- 
riglit. 

liloom  V.  Nixon  (1903),  125 
Fed.  (C.  C.)  977.  Following 
the  English  ca.ses  of  Talc  v.  Full- 
brook  and  Biiihop  v.  Viviaiia  &  Co. 
Tlie  song  was  merely  a  vehicle 
to  enable  the  singer  to  imjx'rson- 
ate  another,  and  the  imitation 
was  done  in  good  faith.     From 


the  dicta  of  this  decision  it  would 
apjK'ar  tliat  a  pnrmly  would  not 
infringe  ui^on  the  copyright  of 
tlie  work  panxlied. 

Another  rule,  however,  would 
apply  where  the  imitation  or 
parody  was  merely  a  preten.se 
for  singing  the  song. 

Keene  v.  Clarke  (1867),  28 
X.  Y.  SujKjr.  C't.  38.  It  was 
held  that  interpolations  tech- 
nically known  in  the  profession 
as  "gags  "  were  not  entitled  to 
protection  if  the  original  work 
was  dedicated. 

Tate  v.  Fidlbrook  (Kng.)  (1908), 
1  K.  B.  821;  Kamo  v.  Palh^ 
Frdrcs  (Eng.)  (1908),  99  L.  T.  114; 

24  T.  L.  R.  588.  Follows  Tate  v. 
Fidlbrook  and  holds  a  vaudeville 
sketch  made  up  entirely  of  stage- 
business  and  "gags"  with  no 
sustained  dialogue  is  n(jt  the  sul>- 
ject  of  protection  under  the  Eng- 
lish Copyright  Act.  Court  refused 
to  restrain  a  motion  picture  re- 
production thereof. 

Distinguishing  mechanical  ar- 
rangements from  dramatic  per- 
formances: Harris  v.  Coinmon- 
ivealth  (1885),  81  Va.  240;  Jacko 
V.  State  (1853),  22  Ala.  73;  Carte 
V.  Duff  (1885),  23  Blatchf.  347; 

25  Fed.  (C.  C.)  183. 


538 


THE    LAW   OF   MOTION   PICTURES 


Nor  will  a  description  of  a  dance,  no  matter  how  origi- 
nal or  unique  be  protected,^^  and  the  same  holds  true 
with  respect  to  mechanical  contrivances.^'     • 

Cartoons,  of  course,  may  be  copyrighted  as  such,  but 
whether  a  series  of  cartoons,  expressing  a  connected 
story,  may  be  copyrighted  as  a  "dramatic  composition" 
is  open  to  question,  although  there  is  authority 
to  support  the  conclusion  that  they  may  be  so  copy- 
righted.^^ 


^Fuller  V.  Bemis  (1892),  50 
Fed.  (C.  C.)  926. 

^'' Serrena  v.  Jefferson  (1888), 
33  Fed.  (C.  C.)  347.  "The 
plaintiffs'  contention  is  founded 
solely  upon  the  circumstance 
that  in  their  play  the  river  into 
which  the  fall  takes  place  is 
mimicked  by  a  tank  filled  with 
real  water,  instead  of  by  an  ap- 
paratus constructed  of  cloth, 
canvas  or  painted  paste  board. 
Such  a  mechanical  contrivance, 
however,  is  not  protected  by  a 
copyright  of  the  play  in  which 
it  is  introduced.  The  decisions 
which  extend  the  definition  of 
'dramatic  compositions'  so  as 
to  include  situations  and  'scenic' 
effects,  do  not  cover  the  mere 
mechanical  instnimoiitalitics  by 
which  such  effects  or  situations 
are  i)roduced."  The  court  then 
distinguishes    the    instant    case 


from  Daly  v.  Palmer,  6  Blatchf. 
264. 

Freligh  v.  Carroll  (1871),  Fed. 
Cas.  5092a  (C.  C).  Where  a 
mechanical  contrivance  was  used 
in  connection  with  a  copjTighted 
play,  the  copyright  did  not  pro- 
tect the  mechanical  device. 

See  in  this  connection  Sherman 
V.  Marinelli  (1916),  232  Fed. 
(D.  C.)  730. 

88  Empire  City  Ain.  Co.  v. 
Wilton  (1903),  134  Fed.  (C.  C.) 
132.  "...  I  still  think  that 
the  court  cannot  here  decide 
upon  demurrer  that  there  is  no 
dramatic  right,  so  called,  in  a 
series  of  cart(jons.  The  Supreme 
Court  has  lately  shoivn  a  tendency 
to  xviilcn,  rather  than  to  narrow, 
llie  scope  of  the  copyright  act.  .  .  ." 

As  to  whetfier  an  exhibition  of 
"Hiring  pictures"  infringes  upon 
a  copyright  in  cartoo7is,  sec:  Brad- 


GAGS,    KTC 


539 


Photographs  are  copyrightabk',''^  as  well  as  theatrical 
posters.'"" 

Editorials  and  special  matter  in  a  newspaper  may  l)e 
copyrighted,   although  there  may  be  no  general   eopy- 


bury,  Agtiew  v.  Day  (Kng.) 
(1916),  32  T.  L.  It.  349;  where  it 
wiis  so  held  and  an  injunction 
and  damages  were  awarded  to 
phiintifT. 

See  in  this  connection:  Hene 
V.  Samslag  (1912),  198  Fed. 
(D.  C.)  359,  where  one  Mc- 
Manus,  a  cartoonist,  devised  a 
character  "Napoleon,  the  Newly- 
wed's  Bal)y,"  and  contracted 
with  his  cfvpiaintifTs  to  give  them 
a  license  to  reproduce  such  char- 
acter in  tlie  form  of  a  doll.  Held, 
that  such  agreement  could  not 
be  exclusive,  as  he  had  never 
obtained  a  copyright  on  a  doll, 
and  defendants  could  not  be 
enjoined  from  putting  out  any 
such  doll. 

»»See  Section  five  of  the  Copy- 
right Act  of  1909.  See  also: 
Pagatw  v.  Bcseler  (1916),  234 
Fed.  (D.  C.)  963. 

As  to  tvho  is  entitled  to  copy- 
right of  a  ])fiol()(jmi>li  see:  Ellis  v. 
Ogden  (Kng.)  (1884),  11  T.  L.  R. 
5().  Where  the  sitter  had  not 
paid  for  her  jjhotograph,  the 
copyright  therein   vested  in   the 


photographer.  But  where  such 
photographs  were  paid  for,  copy- 
right vested  in  the  sitt^T.  See, 
in  support  of  the  latter  proposi- 
tion, Ellis  v.  Marshall  (Eng.) 
(1895),  II  T.  L.  R.  522. 

See  also:  Gross  v.  Seligman 
(1914),  212  Fed.  (C.  C.  A.)  930. 
PlaintilT  owned  the  copyright  of 
a  photograph  of  a  woman.  De- 
fendant cjiu.scd  the  same  model 
to  pose  for  a  pliotograph.  The 
liglit,  shade,  background  and 
po.se  were  practically  identical. 
Defendant  was  held  to  infringe. 

See  in  this  connection:  Bracken 
v.  Rosenthal  (1907),  151  Fed. 
(('.  C.)  136.  It  is  an  infringement 
to  make  a  photograph  of  a  copy- 
righted piece  of  sculpture.  "This 
definition  is  fully  sustained  by  the 
authorities  ...  so  that  it  seems 
clear  that  the  word  'copy'  may 
be  u.sed  to  designate  a  picture 
of  a  piece  of  statuary  without 
in  any  way  straining  the  well- 
establi-sluHl  use  of  the  word." 

'>"  lileistein  v.  Donaldson  (11K)2), 
188  r.  S.  235>;  23  Sup.  Ct.  29S; 
rev.  KM  Fed.  993. 


540 


THE    LAW   OF   MOTION    PICTURES 


right  in  the  same  paper.  ^"^  But  government  pubUcations 
cannot  be  protected. ^°- 

Nor  may  a  motion  picture  scenario  be  copyrighted  as 
a  ''dramatic  composition"  although  it  may  be  copy- 
righted as  a  ''book."  The  distinction  is  artificial  and 
incorrect  in  law,  for  a  scenario  is  as  much  a  dramatic 
composition  as  the  lines  of  the  play  in  the  famous  railroad 
scene  in  Daly  v.  Webster. '^^^ 

There  seems  to  be  a  conflict  of  authority  among  the 
Circuit  Courts  as  to  whether  advertisements  and  cata- 
logues may  be  the  subject  of  copyright.     Some  incUne 


101  Tribune  Co.  of  Chicago  v. 
Ass' Id  Press  (1900),  116  Fed. 
(C.  C.)  12G.  "However  the  rule 
may  be  in  reference  to  original 
matter  published  in  such  form, 
I  am  of  opinion  that  there  can 
be  no  general  copyright  of  a 
newspaper  composed  in  large 
part  of  matter  not  entitled  to  pro- 
tection." 

"Under  the  amendment  (au- 
thorizing copyright  in  America 
on  foreign  publications)  whatever 
rights  may  be  vested  either  in  the 
Times  or  the  Tribune  through 
contract  with  it,  to  copyright 
any  editorials  or  special  matter, 
I  am  satisfied  that  it  can  be  exer- 
cised only  for  matter  distinctly 
set  apart  for  the  purpose  and  so 
distinguished  in  the  publication, 
and  lh:it  the  publication  in  this 
country    must    be    substantially 


identical  with  that  in  the  foreign 
country,  to  bring  it  within  the 
intent  of  the  statute." 

"2  Du  Puy  v.  Post  Telegram 
Co.  (1914),  210  Fed.  (C.  C.  A.) 
883. 

lo'DaZy  V.  Webster  (1892),  56 
Fed.  (C.  C.  A.)  483.  "In  plays 
of  this  class  the  series  of  events 
is  the  only  composition  of  any 
importance.  The  dialogue  is  un- 
important, and  as  a  work  of 
art  trivial.  The  effort  of  the 
composer  is  directed  to  arranging 
for  the  stage  a  series  of  events 
so  realistically  presented,  and  so 
worked  out  by  the  display  of 
feeling  or  earnestness  on  the  part 
of  the  actors,  as  to  produce  a 
corresponding  emotion  in  the 
audience.  .  .  ." 

For  detailed  discussion,  see  Sec- 
tion 1. 


BURLESQUES,    PARODIES,    INFERIOR   COPIES 


'A  I 


to  the  opinion  that  they  are  not  "writings"  witliin  tlie 
intent  of  the  framers  of  the  Constitution,  and  therefore 
not  copyrightable, '°^  but  others  hold  that  there  is  enough 
of  originality  and  skill  displayed  in  getting  up  such  ad- 
vertisements as  to  warrant  holding  them  copyrightaljle.'"' 


Section  149. — Burlesques,  parodies,  inferior  copies. 

A  genuine  criticism,  burlesciue  or  i)arody  of  a  copy- 
righted work  is  not  an  infringement. 

"A  copyrighted  work  is  subject  to  fair  criticism,  serious 


iM  Motl  Iron  Works  v.  Clow 
(1897),  82  Fed.  (C.  C.  A.)  310. 
"So  far  as  the  decisions  of  the 
Supreme  Court  have  gone,  we 
think  tliey  hold  to  the  proposi- 
tion that  mere  advcrtisenient.s, 
whether  by  letter  press  or  by 
pictures,  are  not  within  the  pro- 
tection of  the  copyright  laws"  re- 
ferring to  pictorial  illu.stratioiis 
of  artistic  plumbing  fixtures  in 
a  catalogue.  See  also:  Lamb  v. 
Clrnmi  Rapids  Furniture  (1889), 
39  Fed.  (C.  C.)  474,  involving 
similar  illustrations  of  furniture. 

Stone  V.  Dugan  (1915),  220, 
Fed.  (C.  C.  A.)  837;  aff'g  210 
Fed.  399.  A  pamphlet  made  up 
of  adverti-senuMits  which  are  ex- 
travagant, misleading  and  untrue, 
is  not  copyrightable. 

^"^  White  V.  Shapiro  (1915), 
227  Fed.  (D.  (\)  957.  Held  a 
catalogue  of  brass  goods,  which 


consisted  principally  of  trim- 
mings for  electric  light  fixtures 
copyrightable. 

Court  cites  in  support  of  its 
p(jsition:  Da  Pralo  Statuary  Co. 
V.  Giuliani  Statuary  Co.  (1911), 
189  Fed.  (C.  C.)  90;  Natl.  Cloak 
&  Suit  Co.  V.  Kaufman  (1911), 
189  Fed.  (C.  C.)  215;  Bleistcin 
V.  Donaldson  Lithoyraphing  Co. 
(1902),  188  U.  S.  239;  23  Sup. 
("t.  298. 

Meccano  v.  Wagner  (191G), 
234  Fed.  (D.  C.)  912.  A  manual 
explaining  the  workings  of  me- 
chanical toys  held  copyright- 
able. 

See  also:  De  Jong  v.  Bruckcr 
(1911),  182  Fed.  (C.  C.)  1,50; 
atTM  191  Fed.  35. 

But  sec  in  this  connection 
Nan  Cloak  &  Suit  Co.  v.  Stand- 
ard Mail  Order  Co.  (1911),  191 
Fed.  (C.  C.)  528. 


542  THE    LAW   OF   MOTION    PICTURES 

or  humorous.  So  far  as  is  necessary  to  that  end  quota- 
tions may  be  made  from  it,  and  it  may  be  described  by 
words,  representations,  pictures  or  suggestions.  It  is 
not  always  easy  to  say  where  the  hne  should  be  drawn 
between  the  use  which  for  such  purposes  is  permitted  and 
that  which  is  forbidden. 

One  test  which  when  apphcable  would  seem  to  be 
ordinarily    decisive,   is   whether    or    not    so    much    has 
been  reproduced  as  will  materially  reduce  the  demand 
for  the  original.    If  it  has,  the  rights  of  the  owner  of  the ' 
copyright  have  been  injuriously  affected. 

A  word  of  explanation  will  here  be  necessary.  The 
reduction  in  demand,  to  be  a  ground  of  complaint  must 
result  from  the  partial  satisfaction  of  that  demand  by 
the  alleged  infringing  production.  A  criticism  of  the 
origmal  work  which  lessened  its  money  value  by  showing 
that  it  was  not  worth  seeing  or  hearing,  could  not  give 
any  right  of  action  for  infringement  of  Copyright."  ^°^ 

Nor  will  the  "imitation"  of  a  work  ordmarily  be  con- 
sidered an  infringement.  ^°^ 

But  where  the  so-called  imitation  or  impersonation 
was  merely  a  vehicle  for  performing  the  whole  of  a  copy- 
righted work,  defendant's    claim    that   she  was  simply 

'"6//i'M  V.  Whalen  (1914),  220  work  or  novel  was  not  an  infriiiRe- 

Fcd.  (D.  C.)  359.  incnt  of  tlic  copyriglit  if  what,  had 

Sec     also:     (Uyn     v.     Western  been  taken  had  been  subjected 

Feature  Film  Co.   (1910)   (Eng.),  to  such  mental  labor  and  such  a 

W.    N.    5;    140    L.   T.    Jr.    176;  revision    and    alteration    as    to 

Times,  December  22(1,32  T.  L.  H.  produce  an  original  n^sult. 

2,35.     It  was  held  that  a  frcimin(;  ""  (hren       v.       Minzemhcivier 

burlesque  in  a  film  of  a  serious  (1909),  177  Fed.  (C.  C.)  286. 


rOPYUIGHTING    REVISED   EDITION    OF   WORK  543 

niiiuickiiig    the    coiiiplaiuaiit'ti    song    was    licld     unten- 
able."''^ 

A  vulgar  and  grossly  inferior  copy  of  a  work  will  never- 
theless amount  to  an  infringement  thereof.'"^ 

Section  150. — Copyrighting  revised  edition  of  work. 

Under  Section  six  of  the  Act,  compilations,  abridg- 
ments, adaptations,  arrangements,  dramatizations,  trans- 
lations or  other  versions  of  works  in  the  public  domain, 
or  of  copyrighted  works,  when  produced  with  the  consent 
of  the  proprietor  of  the  copyright  in  such  works,  or  works 
repul)lished  with  new  matter,  are  regarded  as  new  works, 
subject  to  copyright  under  the  provisions  of  the  Act;  but 
the  section  further  provides  that  the  pubhcation  of  any 
such  new  works  shall  not  affect  the  force  or  validity  of 
any  subsisting  copjTight  upon  the  matter  employed  or 
any  part  therecjf,  or  l^e  construed  to  imply  an  exclusive 
right  to  such  use  of  the  original  works,  or  to  secure  or 
extend  copyright  in  such  original  works. 

Thus  a  later  edition  of  a  copjTighted  work  may  be 
protected  by  cop>Tight  where  substantial  new  matter 
has  been  added, ^'°  and  a  later  edition  of  a  work  in  the 

^"^ Green   v.    Lubij    (1!)0<)),    177  (('.   ('.   A.)   833;   imxlifying    10!) 

Fed.  (C.  C.)  287.  Fed.  833.    It  was  held  thiit  under 

*"^  Ilanfstoengl  v.  Smith  (Kiig.)  the   copyright   statutes   j)ri()r   to 

(1905),  L.  R.  1  Vh.  510;  74  L.  J.  the   1901)  Act  a.s  well   jus  under 

Cli.  3ai;  92  L.  T.  351;  21  T.  L.  R.  that  Act  a  work  whidi  had  l)een 

291.  l)reviously  cojnriKlitcd,  might  be 

""  West    Fub.    Co.    V.    Edward  copyrighted  again  ai>  a  new  work 

Thompson  Co.    (1910),    170   Fed.  wlicre  new  matter  had  been  .•idde<l 

to  the  previous  edition. 


544  THE    LAW    OF   MOTION    PICTURES 

public  domain,  when  copyrighted,  protects  that  part  of 
the  work  which  is  new  and  original.^" 

Where  it  is  desirable  to  elaborate  a  one  or  two  reel 
picture  pre\dously  copyrighted,  into  a  feature,  it  is  im- 
portant that  care  be  taken  that  the  new  work  be  copy- 
righted, otherwise  not  only  will  the  new  work  be  dedicated 
but  the  old  work  as  well. 

Section  151. — Works  in  public  domain. 

Section  seven  of  the  Act  provides  that  no  cop>Tight 
shall  subsist  in  the  original  text  of  any  work  which  is  in 
the  public  domain,  or  in  any  work  which  was  published 
in  this  country  or  any  foreign  country  prior  to  the  going 
into  effect  of  the  present  copjTight  act,  and  which  has 
not  been  already  cop^Tighted  in  the  United  States. 

Although  portions  of  a  work  may  be  in  the  public 
domain  or  non-copyrightable  matter,  the  work,  as  a 
whole,  may  be  the  subject  of  copyright.^^^ 

Section  152. — Component  parts. 
A  revolutionary  section,  and  one  wliich  will  greatly 

^^^  Kipling  v.   Putnam    (1903),  was   held    that   the    copjTislitcd 

120  Fed.  (C.  C.  A.)  631.  work  was  dedicated  as  the  public 

See    also:    Bentley    v.    Tibbals  coukl   not   know   which   part   of 

(191.5),  223  Fed.  (C.  C.  A.)  247.  the  larger  edition  was  i)r()tected 

Where     the     complainant    after  by    copyright    and     which    was 

copyrighting  a  work  included  the  not. 

entire  copyrighted  work  in  a  larger  "'^  Lawrence  v.  Bnnhndl  (India) , 

edition,   printed    the   larger  cdi-  35  Ind.  L.  R.  Calc.  463;  Kipling 

tion  in  England  with  a  copyright  v.     Pxdnam     (1903),     120     Fed. 

notice   and   sold    copies   of   su(;h  (C.  C.  A.)  631. 
edition   in   the   United  States  it 


COMPONENT   PARTS 


545 


enhance  the  value  of  copyright,  especially  with  respect 
to  dramatic  works  and  motion  pictures,  is  Section  three, 
which  provides  in  effect  that  by  copyright  inj^  the  work 
all  the  comi)onent  parts  of  it  are  protected.'"  That 
section  has  already  shown  its  utility  in  several  decisions, 
one  in  the  copyrighting  of  a  catalogue;  "^  and  in  the  right 
to  use  the  words  of  a  copyrighted  song  in  conjunction 
with  mechanical  contrivances.'"'' 

The  protection  afforded  by  this  section  of  the  Act  has 
reference  to  the  separate  chapters,  sul)divisions,  acts,  etc., 
of  a  work  and  not  to  the  subdivision  of  rights,  Ucenses  or 
privileges.'"^ 

The  section  also  provides  that  in  the  case  of  composite 
works  or  periodicals  the  copyright  thereon  shall  give  to 


'•'MfliV  A  Kxpress  v.  Life 
Pub.  Co.  (1!)12),  102  Fod.  (C.  ('. 
A.)  899. 

"*  Do  Pralo  v.  Giuliani  (1911), 
ISO  Fed.  (C.  C.)  90.  "The 
complainant  having  copyriglited 
its  entire  catalogue  was  entitled 
to  the  protection  of  the  copyriRht 
hiw  as  to  each  cut  contained 
therein." 

"*  Witmark  v.  Staiuldid  Mu.^ir 
Roll  (1914),  213  Fed.  (I).  (".) 
532;  aff'd  221  Fed.  370.  The 
copyright  of  a  work  as  a  musical 
composition  prior  to  1909  jm)- 
tectod  the  music  but  not  the 
words.  Under  the  1<K)9  act, 
howpver,  copyright  of  a  musical 
composition  was  held  to  protect 


all  the  copyrightable  component 
l)arts  thereof. 

And  see:  Mill^  v.  Standard 
Mu,sic  Roll  Co.  (191.5),  223  Fod. 
(D.  C.)  849,atT'd  by  United  States 
Circuit  Court  of  Appeals — Third 
Circuit  at  March,  1917  term. 
See  opinion  of  the  Circuit  Court 
of  Appeals,  holding  that  :is  to 
musical  compositions  copy- 
righted subsequent  to  1909  the 
words,  being  a  comj)onent  part 
of  the  work,  were  entitled  to 
full  protection,  even  thougii  not 
separately    copyrighted. 

"« .VcH?  Fiction  Publishing  Co. 
V.  Star  Co.  (1915),  220  Fed.  (D. 
C.)  994. 


546  THE    LAW   OF   MOTION    PICTURES 

the  proprietor  all  the  rights  in  respect  thereto  which  he 
would  have  received  if  each  part  were  separately  copy- 
righted. ^^^ 

Section  153. — Term  of  copyright. 

Copyright  secured  under  the  Act  endures  for  twenty- 
eight  years  from  the  date  of  first  pubUcation,  under  Sec- 
tion twenty- three. 

A  difficulty  presents  itself  when  we  attempt  to  fix  the 
duration  of  copyright  secured  in  unpubhshed  works  pur- 
suant to  Section  eleven.  Congress  has  apparently  over- 
looked the  necessity  for  a  provision  in  that  section  Umiting 
or  defining  the  period  for  which  copyright  is  to  run. 

The  Register  of  Cop>Tights  issues  a  certificate  upon 
the  making  of  the  deposit  called  for  in  that  section,  which 
provides  that  copyright  in  the  work  shall  endure  for 
twenty-eight  years  from  the  date  of  the  certificate. 

When  the  question  comes  before  the  courts  the  Register 
of  Copyrights  will  probably  be  sustained  in  his  action. 
Since  the  constitution  provides  that  the  term  of  copy- 
right must  be  Umited,  the  courts  will  no  doubt  fix  the 
time  of  protection  of  the  unpubhshed  work  for  the  same 
period  as  that  granted  to  the  published  work. 

They  will  also  hold,  we  believe,  that  where  the  un- 
published work  is  thereafter  reproduced  in  copies  for 
sale,  the  original  term  will  run,  not  from  the  date  of  first 
publication,  but  from  the  date  of  the  deposit  of  the  copy 

"vForr/  V.  Jilmu'if  (1900),  US  1!)0  IT.  S.  200;  23  Sup.  Ct.  709; 

Fed.   (C;.  C.)  042;  Dam  v.  Kirk  Holmes     v.     Ilurst     (IS!)!)),     174 

La  Shclle  (1910),  175  Fed.  {C.  C.  U.  S.  82;  19  Sup.  Ct.  000. 
A.)  902;  Mijflin  v.  While  (1902), 


RENEWAL   OK    (  OI'YKIGHT  .V17 

called  for  in  Section  eleven  and  the  issuance  of  the  certif- 
icate for  such  unpublished  work  by  the  Register  (jf  C(jpy- 
rights. 

If  this  were  not  so  and  one  who  had  obtained  copyright 
in  a  i)lay  as  an  unpublished  work,  refrained  from  publica- 
tion for  a  period  of  twenty-seven  years  and  then  first 
published,  the  original  term  would  be  extended  for  twenty- 
eight  years  and  in  addition  there  would  be  the  right  of 
renewal  for  an  additional  twenty-eight  years. 

Section  154. — Renewal  of  copyright. 

The  monopoly  of  copyright  is  extended  by  Section 
twenty-four  of  the  Act  for  an  additional  period  of  twenty- 
eight  years,  but  only  to  the  author,  if  still  living,  or  the 
willow,  widower,  or  children  of  the  author,  if  the  author 
be  not  living,  or  if  such  author,  widow,  widower  or  children 
be  not  living,  then  by  the  author's  executors,  or  in  the 
absence  of  a  will,  to  his  next  of  kin,  except  that  as  pro- 
vided in  Section  twenty-three  of  the  Act  in  the  case  of  a 
posthumous  work,  a  composite  work  upon  which  the 
coi)yright  was  originally  secured  by  the  proprietor  thereof, 
or  of  any  work  copyrighted  l)y  a  corporate  body  (^other- 
wise than  as  assignee  or  licensee  of  the  individual  author) 
or  by  an  employer  for  whom  such  work  is  made  for  hire, 
the  ]iroprietor  of  such  copyright  shall  be  entitled  to  a 
renewal  and  extension  of  such  copyright  for  the  twenty- 
eight  year  period. 

The  application  for  renewal  nuist  in  any  event  be  made 
to  the  copyright  ofTice  and  duly  registered  therein  within 
one  year  prior  to  the  expiration  of  the  original  term  of 
the  copyright. 


548  THE    LAW   OF   MOTION    PICTURES 

The  right  of  renewal  can  only  be  exercised  by  those 
mentioned  in  the  Statute. ^^^ 

An  assignment  of  the  renewal  copyright  executed 
more  than  one  year  before  the  expiration  of  the  origi- 
nal copyright  is  insufficient  to  give  the  assignee  the 
right  to  apply  for  the  renewal  of  the  copyright  in  his  own 
name. 

The  apphcation  for  the  renewal  camiot  be  made  except 
during  the  year  preceding  the  expiration  of  the  original 
copyright.  During  that  year  the  right  of  renewal  accrues 
to  the  author,  if  he  is  still  living,  or  to  his  widow  or  chil- 
dren, if  the  author  is  not  then  living. 

During  that  year  the  author  can  assign  his  right  to 
apply  for  a  renewal  and  under  such  an  assignment,  made 
during  that  year,  the  assignee  has  a  right  to  apply  for 
the  renewal. 

The  Register  of  Copyrights  will  not  accept  a  renewal 
application  imless  it  is  signed  by  the  author  or  by  the 

^^»  White-Smith  v.  Goff  (1911),  an  author  was  employed  to  coin- 

187  Fed.   (C.   C.   A.)   247;  aff'g  pile  a  book  and  in  consideration 

180  Fed.  256.     The  right  of  re-  of  a  .specified  sum  .sold  the  copy- 

newal  can  only  be  exercised  by  right  to  the   pubUsher  and  the 

those  mentioned  in  the  statute,  author's  name  was  pubhshed  on 

"It  is  to  be  noted  that  in  each  the  title  page  as  su('h  author,  the 

statute  the  grant  of  the  original  author  alone  was  entitled  to  the 

copyright  is  to  the  author  or  pro-  renewal. 

prictor,  while  as  to  the  provision  As  to  (he  right  of  an  atdfior  who 

for  an  extension  the  word  'pro-  has  assiynal  the  copyright  to  cn- 

prietor'     is     studiously    stricken  Join  his  assignee,  upon  securing  a 

out.  .  .  ."  renewal  thereof  see:  Paige  V.  Banks 

See    al.so:    I'ierpunt    v.    Foule  (1870),  7  Blatch.  152. 
(1846),  Fed.  Cas.  11,1.52.     When 


RENEWAL   OF    fOPYRICHT  •'►40 

assip:noc  in  rase  tho  assignmorit  was  made  during  the  last 
year  of  the  original  term. 

If  the  author  has  assigned  tlie  renewal  right  more  than 
a  year  Ix'fore  the  expiration  of  the  original  term,  and 
during  the  last  year  of  the  term  refuses  to  sign  an  applica- 
tion, he  could  he  compelled  in  an  e(iuity  action  to  sign 
such  application.  The  difficulty  of  relying  on  such  an 
action,  however,  lies  in  the  fact  that  the  action  could  not 
be  commenced  until  after  the  commencement  of  the  last 
year  of  the  original  term,  and  that  it  might  not  be  brought 
to  judgment  until  after  the  expiration  of  that  year.  In 
that  event  no  application  would  be  made  during  the  last 
year  of  the  original  term  and  the  right  of  renewal  would 
be  entirely  lost. 

In  case  the  assignment  was  made  more  than  a  year 
before  the  expiration  of  the  original  tenn,  and  the  author 
dies  thereafter,  the  assignment  will  become  worthless, 
and  the  renewal  copyright  will  l)el()ng  absolutely  to  the 
persons  designated  in  the  statute.  If,  however,  the  assign- 
ment was  made  during  the  last  year  of  the  original  term, 
application  for  the  renewal  copyright  would  vest  such 
renewal  right  in  the  assignee,  and  the  rights  so  vested 
would  not  be  lost  in  case  the  author  dies  after  the  assignee 
has  acquired  the  renewal  copyright. 

After  securing  the  renewal  of  the  copyright,  the  copy- 
right notice  should  give  the  year  when  the  renewal  coi)y- 
right  conunences  and  the  name  of  the  author  in  whose 
name  the  renewal  right  was  obtained.  Where  the  renewal 
right  has  been  assigned  and  the  assignment  recorded  as 
provided  by  the  Act  then  the  assignee  may  substitute 
his  name  in  the  notice  in  place  of  that  of  the  author. 


550 


THE    LAW   OF   MOTION    PICTURES 


Section  155. — Assignment  of  copyright. 

Copyright  is  not  a  divisible  right  but  the  rights  under 
it  may  be  cut  up,  and  a  part  of  the  right  assigned  to  one 
and  part  of  the  right  retained  by  the  proprietor  or  as- 
signed to  another  party.  There  is  no  restriction  m  equity 
upon  the  power  of  the  copyright  proprietor  to  assign 
all  or  any  portion  of  his  right.  An  assignment  of  the 
whole  or  of  an  undivided  part  of  the  copjTight  to  each 
of  two  or  more  persons  makes  the  holders  thereof  joint 
owners.  ^^^ 

No  formal  assignment  of  the  right  to  copjTight  is  neces- 
sary; mere  consent  is  sufficient  to  constitute  one  the 
proprietor.  ^^° 


'''Black  V.  Allen  (1890),  42 
Fed.  (C.  C.)  618;  (1893),  56  Fed. 
(C.  C.)  764.  There  is  no  re- 
striction in  equity  upon  the  power 
of  a  copyright  proprietor  to 
assign  or  transfer  an  exclusive 
right  to  use  a  copyrighted  work. 
In  such  case  the  legal  title  remains 
in  the  prcjprietor;  and  a  beneficial 
interest,  to  the  extent  which  is 
agreed  upon  vests  in  the  otiier 
party  who  lias  accjuired  an  equi- 
table right  in  the  copyright  and 
who  may  bo  properly  styled  an 
"assign(;e  of  an  (Miuitable  in- 
terest." 

"»C'ar/c  V.  Evans  (1886),  27 
Fed.  (C.  ('.)  861;  Srhiiinachcr  v. 
tichwenke  (188.-)),  25  Fed.  (C.  (".) 
466;  lAttlc  V.  Could  (18r)2),  Fed. 
Can.  8,'{95  {C  C);  Laurence   v. 


Dana  (1869),  Fed.  Cas.  8,136  (C. 
C);  Sweet  v.  Be?ining  (1855),  1  K. 
&  J.  169;  aff'd  6  De  G.  M.  &  G. 
223;  Gill  v.  United  Slates  (1896), 
160  U.  S.  426;  16  Sup.  Ct.  322; 
Callaghan  v.  Meyers  (1888),  128 
U.  S.  617;  9  Sup.  Ct.  177;  Black 
v.  Allen  (1890),  42  Fed.  (C.  C.) 
618;  White-Smith  v.  Apollo  (1905), 
139  Fed.  (C.  C.)  427;  aff'd  209 
U.  S.  17;  28  Sup.  Ct.  319;  Marsh 
V.  Conquest  (Eng.)  (1864),  17  C. 
B.  N.  S.  418;  33  L.J.  P.  C.  319; 
lOJur.  N.  S.989;10L.T.717;r2 
W.  R.  309. 

Gould  V.  Banks  (1832),  8 
Wend.  (N.  Y.)  5()2.  An  iussign- 
ment  or  rcliiKiuishmciit  in  llie 
copyright  of  a  book,  or  of  an 
interest  in  surh  copyright,  is 
void  if  not  in  writing,  altliougli 


ASSIGNMENT  OF  rOPYRHIHT  .551 

To,  however,  assign  a  copjTight  wliicli  has  already 
been  secured,  it  is  necessary'  that  the  assigiunent  shall  be 
in  writing  under  Section  forty-two  of  the  Act  which  ex- 
l)ressly  i)r()vides  that  copjTight  secured  under  the  present 
or  j)revious  Acts  "may  be  assigned,  granted,  or  mort- 
gaged by  an  instrument  in  writing^^  signed  by  the  pro 
l^rictor  of  the  copyright,  or  may  l)e  beriueathed  by  will. 

^^^lere  the  assignment  is  executed  in  a  foreign  countrj', 
under  section  forty-three  it  must  be  acknowledged  by 
the  assignor  before  a  consular  office  or  secretary'  of  lega- 
tion of  the  United  States  authorized  by  law  to  admuiister 
oaths  or  perform  notarial  acts. 

Section  forty-four  directs  that  every  assignment  of 
copjTight  shall  be  recorded  in  the  cop>Tight  office  witliin 
three  calendar  months  after  its  execution  in  the  United 
States  or  within  six  calendar  months  after  its  execution 
without  the  limits  of  the  United  States,  in  default  of  which 
such  assigmnent  shall  be  void  as  against  any  subsequent 
l)urchaser  or  mortgagee  for  a  valuable  consideration, 
without  notice,  whose  assigmnent  has  been  duly  recorded. 

Wliere  a  copyright  is  bequeathed,  the  executor  in  whom 
the  copyright  is  vested  must  legally  qualify  ])efore  he 
may  execute  a  valid  assignment  thereof.^-' 

The  assignment  need  not  l)e  drawn  in  any  special  form 
or  arrangement.     Any  WTiting  which  evidences  an  inten- 

an  agreement  to  assign  or  icliii-  to  the  testator  were  bequeathed, 

quish  may  ho  hy  parol.  i)iir|)<)rte<.l   to   a.ssipii   such   copy- 

'■-'  Mackay  v.  Macknij  (Scotch)  rights      before      liavuig      legally 

(1012),  2  Scots  Law  Times,  445.  quaiifietl  as  such  tru.stees.     Held 

Trustees  appoiiitetl  under  a  will,  that  a.'^signmcnt  was  invalid, 
in  whom  the  copyrights  belonging 


552  THE    LAW   OF   MOTION    PICTURES 

tion  to  grant  or  convey  the  copyright  will  be  deemed  suffi- 
cient.^-- And  upon  the  sale  of  a  business,  a  general  state- 
ment that  all  copyrights  belonging  to  such  business  are 
included,  suffices  to  pass  such  copyrights. ^-'^ 
"  An  assignment  of  all  the  dramatization  rights  carries 
with  it  the  rights  to  make  both  a  dramatic  and  motion 
picture  version, ^-^  but  since  the  copyright  in  the  play 
and  in  the  film  may  be  separately  assigned,  assignments 
of  the  copyright  therein  must  be  recorded  to  avail  the 
assignee;  and  failure  to  record  gives  a  bona  fide  purchaser 
of  all  or  some  of  the  rights  a  clear  title.  ^-'^ 

^^"^  Kyle  V.  Jefferys  (Eng.)  right  may  be  assigned  by  a  sep- 
(1859),  3  Macq.  611.  A  receipt  arate  writing,  and  if  doubt  exist 
in  payment  of  the  copyright  has  as  to  which  one  of  several  copy- 
been  held  to  constitute  a  vaUd  rights  the  assignment  refers,  it 
assignment.  becomes  a  question  for  the  jury. 
RohinHon  v.  Illustrated  London  ^  '^s  Baiiks  Law  Pub.  Co.  v. 
Neivs  (Eng.)  (1907),  Times,  Apr^ii  Loit'yers  Co-operative  (1909),  169 
26.  Discusses  the  sufficiency  of  /Fed.  (C.  C.  A.)  386. 
an  instrument  which  operated  ^-*  See  Section  1. 
to  assign  the  entire  copyright  in  ^^^  Brady  v.  Reliance  (1916), 
a  painting.  229  Fed.  (C.  C.  A.)  137.  Com- 
See  also:  Landekcr  v.  WolJJ  i)Iainaiit  dehvoretl  to  Munsey 
(Eng.)  (1907),  r)2  Sol.  J.  4o;  C'(/m-  Company  a  manuscrii)t  and  re- 
berland  V.  Copeland  (Kng.)  {\SC)2),  ceived  therefor  a  specified  sum. 
1  H.  and  C.  194;  31  L.  J.  Ex.  353;  Tlie  receipt  signed  l)y  complain- 
9  Jur.  (N.  S.)  253;  7  L.  T.  334;  ant  contained  tiie  following  "Au- 
Leylund  v.  Stewart  (luig.)  (1S76),  thor  res(M-v('s  right  of  iSook  jMihli- 
4  Ch.  1).  419;  46  L.  J.  Ch.  103;  cation  and  dramatic  rights,  if  any, 
25  W.  H.  225.  after  a  trial  publicatiim  is  corn- 
Sec  also:  Ilardncrc  v.  Arin-  j)letod."  The  Munsey  Company 
s/ro//^  (Eng.)  (1904),  Times,  Dec.  duly  (•(»i)yrighf('(l  the  story  and 
20;  21  T.  L.  K.  1K9;  (1905),  assigned  the  motion  picture  rights 
Times,  Jan.  12-13-17.    The  copy-  to   the  defendant    Mutual   Com- 


ASSIGNMENT   OF    f'OrYRICHT 


r)r)3 


Failure  to  rocord  the  assigiinient  is  nut  available  as  a 
defense  by  an  infringer.  The  purpose  of  the  statute  which 
recjuires  recording  is  to  j)rotect  subsequent  purchasers 
and  mortgagees  of  the  copyright,  not  infringers,  and  the 
assignee  always  has  a  cause  of  action  against  the  infringer 
irrespective  of  the  record.'-^ 

An  action  l)rought  to  compel  an  assignment  or  re- 
assignment of  a  copyright  is  not  an  action  under 
the  copjTight  law,  and  may  be  brought  in  a  State 
court.'-" 


jxiiiy  which  employed  tlio  d('- 
fendant  Hehanco  Company  to 
mnimfucture  the  picture. 

The  comphiiuant  demanded 
that  tlie  ^hnlsey  Company  he 
re(juired  to  rea-'^siRii  to  him  all 
rights  in  and  to  the  copyright 
excei)t  the  right  of  serial  publica- 
tion and  that  the  other  defend- 
ants he  enjoined  from  selling  or 
leasing   the    motion    picture. 

Held,  assuming  that  complain- 
ant could  have  required  the 
MuiLsey  Company,  after  serial 
])ul)lication  to  reassign  to  him 
all  the  other  rights,  that  such 
assignment  would  have  been 
void  against  subsecjuent  pur- 
chasers and  mortgagees  without 
notice,  for  a  valuable  considera- 
tion, unless  recordeil  in  the  office 
of  the  Librarian  of  Congress 
within  sixtv   davs   after  its  exe- 


cution. "Such  persons  can  surely 
not  be  worse  off  when  no  actual 
assignment  whatever  ha.s  been 
made.  Moreover,  without  ref- 
erence to  any  statute,  when  one 
clothes  another  with  apparent 
ownership,  though  actually  a.s 
trustee,  he  cannot  defeat  the 
title  of  tlmse  who  act  in  good 
faith,  for  a  valuable  consideration, 
and  without  notice  deal  with  the 
trustee." 

See  also:  Photo-Drama  Motion 
Picture  v.  Social  Uplift  (191')). 
220  Fed.  (C.  C.  A.)  448,  aff'g  2i;{ 
Fed.  374. 

'-•'■■. Vcir  Fiction  v.  Star  (lOlo),  ^ 
220  Fed.  (I).  C.)  004. 

'"//(>(//  V.  Bates  (1S07),  SI 
Fed.  (C.  C.)  Wl. 

See  also:  Albright  v.  Teas 
(1,SS2),  106  U.  S.  613;  1  Sup.  Ct. 
550,  a  patent  case. 


554 


THE    LAW  OF   MOTION   PICTURES 


An  agreement  to  assign  a  copyright  can  be  specifically 
enforced.  ^-^ 

The  assignee  is  permitted  by  Section  forty-six  of  the 
Act  when  the  assignment  has  been  recorded  to  substitute 
his  name  for  that  of  the  assignor  in  the  statutory  notice 
of  copyi'ight. 

Copyright  is  distinct  from  the  property  in  the  material 
object  copjTighted.  The  Act  pro\'ides  in  Section  forty- 
one  that  the  sale  or  conveyance  by  gift  or  otherwise  of 
the  material  object  shall  not  of  itself  constitute  a  trans- 
fer of  the  copyright,  and  in  like  manner,  that  the  assign- 
ment of  the  copyright  shall  not  constitute  a  transfer  to 
the  material  object.^-^ 

As  was  said  in  the  leading  case  of  Stevens  v.  Cady:  "" 


128  Thomhleson  v.  Black  (Eng.) 
(1837),  iJur.  198. 

^"^^  Harper  v.  Donohue  (1905), 
.144  Fed.  (C.  C.)  491;  Patterson 
V.  Ogilvie  Ptib.  Co.  (1902),  119 
Fed.  (C.  C.)  451;  Wilder  v.  Kent 
(1883),  15  Fed.  (C.  Q\)  217; 
Farton  v.  Prang  (1872),  3  Cliff. 
(C.  C.)  5:37;  Marshall  v.  Bull 
(Eng.)  (1901),  85  L.  T.  77; 
Cooper  V.  Stephens  (Eng.)  (1895), 
1  Ch.  Div.  567. 

i^"  Stevens  v.  Cad)/  (1852),  14 
How.  528.  "No  doubt  tlic  \no\y- 
erty  may  he  readied  l)y  a  cred- 
itor's hill  and  he  applied  to  tlie 
payment  of  the  dehts  of  the  au- 
thor. .  .  .  Hut  in  case  of  such 
nsmedy,  we  suppose,  it  would  he 


necessary  for  the  court  to  compel 
a  transfer  to  the  purchaser  in 
conformity  with  the  requirements 
of  the  copyright  act,  in  order  to 
vest  him  witli  a  complete  title 
to  the  property." 

See  also:  Stevens  v.  Gladding 
(1854),  17  How.  447.  "So  if  he 
has  not  acquired  the  right  to 
print  the  map,  he  cannot  use 
his  plate  for  that  jnirpose,  he- 
cause  he  has  not  made  himself 
the  owner  of  somelhing  as  neces- 
sary to  printing  as  paper  and  ink, 
and  as  clearly  a  distinct  s])ecies 
of  property  as  either  of  tiiese 
articles,  lie  may  make  any  other 
use  of  the  plate  of  which  it  is 
suscejjtihle.       He;    may     k(H'p    it 


ASSKJNMKN'I'    Or    ( OI'VKKJHT  OOO 

"Tho  eop>Tipht  is  an  cxclusivo  rif^ht  to  the  imiltipIicH- 
tion  of  the  copies  for  the  benefit  of  the  author  or  his  as- 
signs disconnected  from  the  plate  or  any  other  physical 
existence.  It  is  an  incorporeal  right  to  print  and  publish 
the  map  or  as  said  by  Lord  Mansfield  in  Millar  v.  7V////or, 
4  Burr,  2390,  a  projjcrty  in  notion,  and  has  no  corporeal 
tangible  substance.'" 

It  was  held  in  that  case  that  a  sale  of  plates  on  an  exe- 
cution against  the  o\Mier  of  the  copyright  did  not  pass 
the  right  to  reproduce  copies  therefrom. 

Applying  that  rule  to  motion  pictures,  a  sale  of  a  posi- 
tive film,  without  the  assignment  of  the  copyright  therein, 
will  not  vest  in  the  purchaser  the  right  to  make  prints 
therefrom.''^' 

Assignment  of  the  copjTight  has  become  one  of  the 
methods  by  which  certain  of  the  rights  are  secured  to  the 
author.  An  author  wishes  to  publish  his  stor>'  in  a  maga- 
zine, but  he  does  not  desire  to  lose  his  dramatization  rights. 
He  assigns  his  right  to  copyright  to  the  proprietor  of  the 
magazine.    As  the  title  now  vests  hi  the  latter,  the  story 

until  tlic  expiration  of  the  limitod  riRht   to    roprodure   tho   film    in 

time,  (luring;  wliicli  tho  oxchisivo  copies. 

right  exists,  and  thon  use  it  to  "  Whon  it  sold  a  iM)sitivo  film. 

print  maps.  ..."  which  was  the  only  moans  of  ixt- 

"»  Uiiircrsal  Film  Mfg.  Co.  v.  forming    the    play,    it    conforml 

Cnppermaii   (1*)14),  21S  Fetl.   (C.  tho  performing  right  on  tho  pur- 

('.  A.)  r)77.    Whon  ix)sitivo  prints  oha.sor  and  his  a.<signs.     No  one, 

of  a  film  are  sold,  hut  the  copy-  hy  virtue  of  that  sale,  would  ac- 

right   therein  is  retained  by  the  cjuiro  the   right   to   ro-onact   the 

seller,     the     purcha.ser     secures  piny  and  take  a  negative  of  it,  t)r 

merely  tho  right  to  ix-rform  the  make,  if  that  could  ho  d(»no,  a  now 

film;     he    docs    not     secure    the  negative  from  the  ixtsitivo  film." 


556  THE    LAW   OF  MOTION    PICTURES 

is  properly  copyrighted  by  the  copyrighting  of  the  entire 
magazine,  for  under  Section  three  of  the  Act  the  copyright 
upon  composite  works  or  periodicals  gives  to  the  pro- 
prietor thereof  all  the  rights  in  respect  thereto  which  he 
would  have  if  each  part  were  individually  copyrighted. 
The  proprietor  of  the  magazine  then  re-assigns  all  but 
the  publishing  rights  to  the  author,  who  becomes  in  this 
wav  re-possessed  of  his  performing  rights. 

This  roundabout  way  is  necessary,  for  unless  the  pro- 
prietor of  the  magazine  owns  the  copyright,  beneficially 
or  as  trustee,  publication  of  the  story  in  the  magazine 
operates  as  a  dedication,  even  though  the  magazine  as  a 
whole  is  copyrighted. ^^- 

Where  the  author,  in  his  unpublished  and  uncopyrighted 
play,  assigns  the  publishing  rights  to  another  and  re- 
serves the  performing  rights  to  himself,  although  he  loses 
his  common-law  rights  as  soon  as  the  play  is  published, 
the  publisher  nevertheless  holds  as  a  trustee  for  the  author 
the  new  dramatization  rights  which  are  created  under 

^^^  Mifflin  V.  White  (1903),  175  Fed.  (C.  C.  A.)  902:  Holmes 
190  U.  S.  260,  23  Sup.  Ct.  769.  v.  Hurst  (1899),  174  U.  S.  82, 
While  the  author  gave  his  pub-  19  Sup.  Ct.  606. 
lishers  the  right  to  pruit,  publish  See  also:  Press  Pttb.  Co.  v. 
and  sell  his  work  \n  a  nuigazinc  Monroe  (1896),  73  Fed.  (C.  C.  A.) 
but  did  not  give  them  the  right  196.  Plaintiff  sold  certain  rights 
to  obtain  copyright  either  in  their  to  a  poem  which  she  had  corn- 
name  or  his,  the  publication  of  posed.  Before  the  publication 
such  work  serially  in  the  magazine  of  the  poem  defendant  without 
destroyed  the  copyright  in  it.  her  consent  i)ul)lisiie(l   the  work 

See     also:     Ford      v.     Blaney  in  its  newspaper,     livid  that  de- 

(1906),    148   Fed.    (('.    V.)    642;  fendant    infringed    plaintiff's   re- 

Dam  V.  Kirk  La  Shelle   (1910),  Bcrved  rights  in  the  manuscript. 


GOLDWYN  PICTURES  CORPORATION  v.  HOWELLS  SALES  CO.,  Inc.,  et  al. 
(Circuit  Court  of  Appeals,  Second  Circuit.     April   17,  V,rS2.) 
No.  301.  X?^^.       ^ 

1.  Copyrights  «S=>85— Under   Copyright    Law.   authorizing   injunctions   oil   bill    of 

"any  party  aggrieved,"  a  party,  to  be  entitled  to  an  injunction,  must  have  a 
cause  of  notion. 

I'ndcT  Cnpyrlulil  Law,  §  .'5(5  (Comp.  St.  S  9".7),  uulliorizing  the  court 
to  trrant  iniuiictions  -Miiion  hill  in  tHjuity  lilcd  l)y  any  party  airtrricvcd,"  a 
person,  to  be  entitled  to  an  injunction,  must  have  a  cause  of  action.  In 
view  of  section  2r>  (.section  'X>U\),  providing  for  an  injunction  to  restrain 
the  infrini-'eiuent  of  a  copyright,  since  section  30  does  not  create  any  new 
cause  of  action,  but  merely  confers  equitable  jurisdiction  in  tlie  United 
States  courts  to  patent  law  and  copyright  controversies  between  citizens 
of  tiie  sjime  state. 

I  Ed.  Note.— For  other  definitions,  see  Word.s  and  Phrases,  First  and 
Second  Series,  A.L'grieved  Party.] 

2.  Copyrights   C=585— Assignee,   to  whom   owner  of  copyright  In   book  assigned 

dramatic  motion  picture  rights,  but  who  did  not  obtain  copyright,  not  en- 
titled to  injunction;    "party  aggrieved." 

AssiKuee.  to  whom  owner  ol  copyri^Mit  in  certain  book  assipied  dramatic 
motion  picture  rifilits,  but  who  did  not  copyrijiht  motion  picture  iihoto- 
plav.  under  (\)pyri^'lit  Law.  §  11,  as  amended  liy  Act  Aur.  24.  1912  (Comp. 
St  §  t>"):{2).  was  not  entitled  to  an  injunction  in  the  District  Court  against 
othiT  production  in  violation  of  its  rights  under  such  assignment,  under 
se«-tion  .'lU  (section  O'yol),  authorizing  the  court  to  grant  an  injunction  at 
tlie  instance  of  "anv  partv  aggrieved."  since  such  assitmee,  not  l)emg  the 
owner  of  a  copyright,  was  not  entitled  to  an  injunction  under  section 
25  (section  9546).  * 

.\ppc-al  from  the  District  Court  of  the  United  States  for  the  South- 
ern District  of  New  York. 

Action  by  the  C.oldwyn  Pictures  Corporation  against  the  Hovvells 
Sales  Company,  Inc.,  and  others.     From  an  order  granting  an  mjunc- 
■-•n  pendente  hte,  defendants  appeal.     Reversed. 

'-nra  an  order  of  the  District  Court  for  the  Southern  District  of 


tiie  date  of  the  renewal  by  her.  Plaintiff  alleges^hat,  upon  acquiringl 
dramatic  motion  picture  rights  of  the  book,  it  productd  a  dramatic  motion  v^ 
tare  and  had  about  completed  the  same  at  an  expense  of  over  $117,000,  whei 
the  defendants  commenced  the  exhibition  of  the  "Vendetta,"  which  plaintif 
claims  IS  an  infringement  of  its  copyright. 

r  ^^^^^l  ^'  -^at^enstein,  of  New  York  City  (Charles  H.  Tuttle  anc 
1-  1,  ■  -^f  ^1;^^"'  ^^oth  of  New  York  City,  of  counsel),  for  appellants 
KeJley  iv:  Becker,  of  New  York  City  (Charles  E.  Kelley,  of  Ne^ 

:iork  City,  of  counsel),  for  respondent. 

Before  HOUGH,  MANTON,  and  MAYER,  Circuit  Judges. 

MAYER,  Circuit  Judge  (after  stating  the  facts  as  above).  We 
snail  riot  discuss  defendants'  contention  that  a  renewal  of  the  copy- 
right ot  tlie  book  was  not  properly  secured.  For  the  purposes  of  this 
appeal  we  shall  assume,  without  deciding,  that  plaintiff  is  the  legal 
owner  ot  the  dramatic  motion  picture  rights 

The  relief  prayed  for  in  the  bill  is  tlfat  prescribed  in  section  25  of 
he  Copyright  Act  (Comp.   St.   §  9546),  and  the  prayer  is  substan- 

o^nV]^  ^?^  V  ^^^^  '"  '^'^'^  ^^"^^^o"  Pub-  Co.  V.  Star  Co.  (D.  C.) 
^^0  Fed.  994.    At  the  outset  it  is  insisted  by  plaintiff  that  it  is  not  a 
licensee,  but  the  assignee  of  a  separately  copyrightable  copyright  un- 
der the  copyright  statute.     The  Act  of  August  24,   1912,  amended 
Copyright  Uw,  §   11  (Comp.  St.  §  9532),  so  as  to  permit  the  copy 
thf  n    hoto    b^'s ""   ^'""^"''^  photoplays  and   "Motion  pictures   other 
At  the  time  the  aiit  at  bar  was  commenced,  plaintiff  did  not  have 
a  copyright  under  the  act  above  referred  to,  but  was  merely  the  as- 
signee of  rights  which  may  enable  it  hereafter  to  copyright  a  motion 
picture  photoplay.    Until  then  it  will  not  be  the  owner  of  a  copyrigh 
Its  present  legal  position  is  that  it  is  the  assignee  of  rights    but  is 
in  no  sense  the  owner  of  a  copyright.    To  say  that  plaintiff  is' the  a 
signee  of  such  rights  is  merely  another  way  of  saying  that  it  is  a "^ 


DIFFKIIENCE    BET^VEEN    ASSKJNMENT   AND    LK'ENKE      557 

the  c<)j)yriglit,  and  may  be  c-()iii])C'llt'd  to  assign  the  same 
to  the  author.'^'' 

It  would  seem  that  there  is  an  impUed  warranty  of 
titles  where  a  copyright  is  assigned. '^^ 


Section  156. — Difference  between  assignment  and  li- 
cense. 
There  is  a  great  difference  between  an  assignment  of 
the  copyright  and  a  hcense,  arising  especially  in  the  ques- 
tion of  suit.'^'^  But  for  all  purposes  an  exclusive  license 
of  a  particular  right  under  the  copyright  for  the  entire 


'^^Filck  V.  Young  (1915),  230 
Fed.  (D.  ('.)  743. 

See  also:  Furd  v.  Blaney  (190G), 
148  Fed.  (C.  C\)  842. 

"♦  .S't'm.s  V.  Marryal  (Eng.) 
(1851),  17  Q.  B.  281. 

"'/Is  to  what  constitutes  an 
assignment  of  the  copyright  or  the 
mere  giving  of  a  license  see:  Lan- 
deker  v.  Wolff  (Eng.)  (1907),  52 
Sol.  J.  45;  Tree  v.  Bowkett  (Eng.) 
(189G),  74  L.  T.  77;  Lucas  v. 
Cooke  (iMig.)  (ISSO),  13  Ch.  D. 
872;  Lacy  v.  Toole  (Eng.)  (1867), 
15   L.   T.   512. 

For  a  careful  discu^ssion  of  the 
differences  in  the  rights  granted 
see:  Heap  v.  Hartley  (Eng.) 
(1889),  42  Ch.  D.  461. 

Re  The  Liedertafel  Series  (Eng.) 
(1907),  L.  R  1  Ch.  651;  96  L.  T. 
760,  76  L.  J.  Ch.  542;  23  T.  L.  11. 


461.  Giving  one  "the  sole  and 
cxclasivc  right  of  printing  and 
publishing  the  .series"  did  not 
operate  as  an  a-ssignment  of  the 
copyrigiit. 

In  re  Clinical  Obstetrics  (Eng.) 
(1908),  Ch.  D.  Dec.  4.  "The 
whole  and  exclusive  right  in  all 
countries  to  print  and  pui)lish 
the  work"  was  construed  to 
confer  an  exclusive  license  and 
not  an  assignment  of  the  copy- 
right. 

Black  V.  Imperial  Book  Co. 
(Can.)  (1904),  5  Ont.  L.  R.  184. 
An  agreement  giving  the  ex- 
clusive right  to  publish  and  vend 
a  work  for  a  jxM-iod  less  than  the 
unexpired  term  of  tlie  copyright 
is  a  license  and  not  a  partial 
a.ssignment  of  the  copyright. 


558 


THE    LAW   OF   MOTION    PICTURES 


term  of  such  copyright  operates  in  law  as  an  assignment 
of  that  right.  1^'^ 

Instruments  purporting  to  convey  certain  grants  or 
hcenses,  especially  dramatizations  and  motion  picture 
rights,  are  constantly  coming  up  for  construction.^^' 

Dam  V.  Kirk  LaShelle  contains  a  valuable  discussion 
on  the  reservation  of  rights  and  the  methods  of  construing 
such  grants.  ^^* 


^^^  Fitch  V.  Young  (1916),  230 
Fed.  (D.  C.)  743.  "The  analogy 
of  patents  is  apt  in  which  the 
form  of  an  assignment  does  not 
count,  and  in  which  even  a  li- 
cense for  the  term  of  the  patent 
to  use,  make  and  vend  will,  if 
exclusive,  operate  as  an  assign- 
ment." 

See  in  this  connection:  Ed- 
wards V.  Cotton  (Eng.)  (1902),  19 
T.  L.  R.  34.  Plaintiffs  sought  in- 
junction to  restrain  defendant 
from  singing  in  public  a  certain 
song  which  they  had  composed 
and  which  was  taken  from  an  oper- 


etta composed  by  them.  Defend- 
ant offered  to  show  that  one  of 
the  plaintiffs  had  sent  her  a  pencil 
copy  of  the  song  with  the  words, 
"Herewith  the  MS  of  your  song 
'Men.'"  The  court  held  that 
this  was  not  a  permanent  and 
irrevocable  license  to  sing  the 
song,  and  granted  injunction. 

'"  See  Section  1  for  a  detailed 
discussion  of  the  decisions. 

"*  Dam  V.  Kirk  La  Shelle 
(1908),  166  Fed.  (D.  C.)  5S9; 
aff'd  175  Fed.  (C.  C.  A.) 
902. 


CHAPTER  XIII 

COPYRIGHT    (continued) 

Infringement 

Sec.  157.  Tests— What  is  protected. 
158.  Primary  test. 
150.  Common  sources. 

100.  Substantial  similarity  by  coincidence. 

101.  Who  may  maintain  action — Misjoinder  of  parties — Joinder 

of  causes  of  action. 

102.  Whore  action  may  be  brought. 
lO.'i.  Who  is  liable — Intent. 

164.  Wliat  must  be  alleged  and  proved. 

165.  Bill  of  particulars. 

It  is  this  branch  of  the  Copyright  Law  with  which 
most  of  the  htigation  concerns  itself.  Piracy  is  a  broad 
term,  and  no  statute  nor  court  may  with  any  degree  of 
definitiveness  say  that  this  or  that  degree  of  similarity 
is  sufficient  to  constitute  piracy.  Just  as  there  are  in- 
finite works  which  will  l)e  entitled  to  copyright,  so  there 
may  be  an  infinite  variety  of  arrangements  of  other  works 
which  may  or  may  not  infringe  \\\)oi\  the  originals;  and 
to  guide  them  in  determining  whether  or  not  piracy  exists, 
the  courts  have  laid  down  certain  rules  and  tests  which 
time  has  shown  to  be  of  great  value. 

Section  157. — Tests — What  is  protected. 
We  must  keep  in  mind  the  all  important   rule  that 

559 


560  THE    LAW   OF   MOTION    PICTURES 

"There  is  no  inherent  property  right  in  ideas,  sentiments 
or  creations  of  the  imagination  expressed  by  an  author, 
apart  either  from  the  manuscript  in  which  they  are  con- 
tained or  the  concrete  form  which  he  has  given  them, 
and  the  language  in  which  he  has  clothed  them."  ^ 

It  is  not  the  intellectual  conception,  or  the  thought  or 
the  idea  which  is  copyrighted,  but  the  writings  of  the 
author,  the  form  of  expression  and  the  arrangement  of 
the  words.  ^ 

''The  right  thus  secured  by  the  copyright  act  is  not  a 
right  to  the  use  of  certain  words,  because  they  are  the 
common  property  of  the  human  race,  and  are  as  little  sus- 
ceptible of  private  appropriation  as  air  or  sunlight ;  nor  is 
it  the  right  to  ideas  alone,  since  in  the  absence  of  means  of 
communicating  them  they  are  of  value  to  no  one  but  the 

'  Maxwell  v.  Goodwin  (1899),  U.  S.  86;  19  Sup.  Ct.  606;  While- 
93  Fed.  (C.  C.)  665.    The  court  '    Smith  v.  Apollo  (1907),  209  U.  S. 

quoting  from   Siowe'  v.    Thomas  17,  28  Sup.    Ct.   319;  Stowe  v. 

(1853),    Fed.    Cas.    No.    13,514  Thomas  (1853),  2  Wall.  Jr.  (C. 

(C.  C).  C.)    547,    23    Fed.    Cas.     201; 

See    also:    Jejfrys    v.    Boosey  Baker  v.  Seidell  {\S7Q),  \0l  V.  ii. 

(Eng.)    (1S.54),  4   II.   C.   L.   867,  99;  Johmon  v.  Donaldson  {IS,H0), 

and    Reade    v.    Conquest    (Eng.)  3   Fed.    (C.     C.)     22;    Ferris  v. 

(1862),  lie.  B.(N.S.)  479;  Mac-  Ifexamer   (1878),  99   U.   S.  674, 

Gillivray     on     ('opyright,     and  676;  Bobbs-Merrill  Co.  v.  Stranss 

Copinger  on  Copyright,  5th  ed.,  (1908),   210   U.  S.  339,  347;   28 

for  the  oarh(T  lOnghsh  ca.ses  for-  Sup.  Ct.  722. 
nuilating  tlii.s  rule.  (Uirtwrighl   v.    Wharton   (Can.) 

See  generally  for  discus.sion  of  (1912),  25  Ont.  L.  R.  357.    C'opy- 

iiifringemeiit    of    drainati(;    com-  right  extends  only  to  the  cxpres- 

|M)sitions;,S'r/i/o/zv.  ylmasis  (Eng.)  sion,  development  and  scMiuence 

(1909),  Times,  May  19.  of   the   work,   not    to    the    ideas 

^Holmes  v.  Hursl  (1899),  174  themselves. 


rHlMAUY    TEST  .)t)l 

author.  But  the  rifj;ht  is  to  that  arran^ciucnt  of  \V(jrds 
wiiich  tlie  author  has  selected  to  expres.s  his  ideas."  ^ 

'tTie^  purpose  of  affording  protection  toli,uthors  is  "t(j 
I)romotc  the  progress  of  science  and  useful  arts."  '  If  an 
author  could  secure  a  monopoly  of  the  ideas  and  intel- 
lectual conceptions  contained  in  his  writings,  the  protec- 
tion given  to  authors  would  impede  rather  than  advance 
the  arts  as  each  author  by  his  ai)i)roi)riati<)n  would  narrow 
the  field  of  thought  to  which  authors  go  for  their  material.' 

In  the  words  of  Lord  Mansfield : 

"We  must  take  care  to  guard  against  two  extremes 
equally  prejudicial — the  one,  that  men  of  ability,  who 
have  employed  their  time  for  the  service  of  the  comnmnity 
may  not  be  deprived  of  their  just  merits  and  the  reward  of 
their  ingenuity  and  labor;  the  other,  that  the  world  may 
not  be  deprived  of  imj)rovements,  nor  the  progi'ess  of  the 
arts  be  retarded.  The  act  that  secures  copyright  to  authors 
guards  against  the  piracy  of  the  words  and  sentiments, 
but  it  does  not  prohibit  writing  on  the  same  subject."  ^ 

Keeping  this  rule  of  law  constantly  before  us,  we  will 
readily  understand  the  primary  test  that  is  apphed  to 
determine  infringement  or  piracy  of  a  work. 

Section  158. — ^Primary  test. 
In  the  leading  English  case  of  Chatierton  v.  Cave,''  cited 

'Holmes  V.  Ilurst  (1S91)),  174  '•  Snipr    v.     Muorc     (Kng.),     1 

U.  S.  82;  19  Sup.  Ct.  606.  lOa-st,  361. 

*  Constitution    of    the    United  '  Cfuitterton     v.     Caiv     (I'^ng.) 

States,  Article  one,  Section  eight.  (1S78),  3  App.  Cas.  483;  47  L.  J. 

»  Holmes  V.  Hurst  (1899),   174  (^  H.  545;  38  L.  T.  397;  26  W.  R. 

U.  S.  86;  19  Sup.  Ct.  606.  498.    For  an  earUer  leailing  Eng- 


562  THE    LAW   OF   MOTION    PICTURES 

time  and  again  with  approval  in  American  cases,  the  rule 
of  piracy  was  expounded  that  in  order  to  maintain  an 
action  for  infringement  a  ''substantial  and  material  part" 
of  the  work  must  be  taken. 

That  rule  is  now  accepted  as  the  primary  test  of  in-' 
fringement,  and  was  laid  down  in  the  early  American 
case  of  Emerson  v.  Davies,^  where  Judge  Story,  speaking 
of  the  infringement  of  one  book  by  another,  said : 

"It  is  not  sufficient  to  show  that  it  may  have  been 
suggested  by  Emerson's,  or  that  some  parts  and  pages  of 
it  have  resemblances  in  method  and  details  and  illustra- 
tions to  Emerson's.  It  must  be  further  shown  that  the 
resemblances  in  those  parts  and  pages  are  so  close,  so 
full,  so  striking,  as  fairly  to  lead  to  the  conclusion  that 
the  one  is  a  substantial  copy  of  the  other  or  mainly  bor- 
rowed from  it." 

This  rule  has  been  reiterated,  clothed  in  different  lan- 
guage, in  the  more  important  cases  of  infringement  which 
have  come  before  the  iVmerican  courts. 

Judge  Blatchford  lays  it  down  in  Daly  v.  Pahner.^  In 
that  case  complainant  represented  in  his  play  a  railroad 
scene  in  which  the  hero  was  tied  to  a  railroad  track  to 
be  killed  by  an  oncoming  train.     Shortly  before  the  arrival 

lish  case,  see  Planche  v.  Braharn  ^Emerson  v.  Dairies  (1845),  3 

(1837),  4  Bing.  N.  C.  17.  Story, 768. 

hi  rrengroiise  y.  "Sol"  Syndi-  ^  Daly    v.    Palmer    (1868),    6 

cate  (Eng.)   (1901),  Times,  Sept.  Blatch.  256. 

26,  the  taking  of  a  single  page  of  Sec    also:    Chappell    v.    Fields 

a  large  book  was  lield  sufficient  (11)14),  210  Fed.  (C.  C.  A.)  864, 

to  entitle  plaintiff  to  an  injunc-  and  Ricordi  v.  Mason  (1911),  201 

tion.  Fed.  (C.  C.)  182;  aff'd  210  Fed. 

277. 


PKIMAUY    TEST  o(J3 

of  tlio  Iruin,  the  hero  was  released  by  a  woman,  and  iin- 
nu'diately  thereafter  the  train  was  seen  rushing  by.  This 
was  the  cUmax  of  the  play. 

The  defendant  re]n-odu('ed  a  similar  scene  in  liis  jjlay, 
the  (ievel()i)ment  of  the  action  and  the  denouement  being 
practically  identical  in  both  scenes. 

The  court  said : 

"All  that  is  su))stantial  and  material  in  the  plaintiff's 
railroad  scene  has  been  used  by  Boucicault  in  the  same 
order  and  sequence  of  events,  and  in  a  manner  to  convey 
the  same  sensations  and  impressions  to  those  who  see  it 
represented,  as  in  the  plaintiff's  play.  Boucicault  has 
indeed  adapted  the  i)laintiff's  series  of  events  to  the  story 
of  his  play,  and  in  doing  so  has  evinced  skill  and  art;  but 
the  same  use  is  made  in  both  plays  of  the  same  series  of 
events  to  excite  by  representation  the  same  emotions  in 
the  same  sequence.  ...  As  in  the  case  of  a  musical 
composition,  the  air  is  the  invention  of  the  author,  and  a 
piracy  is  committed  if  that  in  which  the  whole  meritorious 
part  of  the  invention  consists  is  incorporated  in  another 
work  without  any  material  alteration  in  se(fuence  of  bars; 
so  in  the  case  of  a  dramatic  composition  designed  or  suited 
for  rei)resentati()n  the  series  of  events  directed  in  writing 
by  the  author  in  any  particular  scene  is  his  invention,  and 
a  piracy  is  connnitted  if  that  in  which  the  whole  merit 
of  the  scene  consists  is  inc()ri)orated  in  another  work  with- 
out any  material  alteration  in  the  constituent  parts  of 
the  series  o£-e\:ents  or  in  the  sequence  of  the  events  in  the 
series." 

\Vlien  in  another  action  '°  the  question  of  the  infringe- 

'^ Brady   v.    Dalu   (l-SllD),    175   U.  S.   148,  20  Sup.  Ct.   62.    See 


5G4 


THE    LAW   OF   MOTION    PICTUKES 


ment  of  the  same  scene  reached  the  Supreme  Court,  that 
tribunal  restated  the  rule  as  follows: 

''When  anyone,  without  the  owner's  permission  pub- 
licly performs  substantially  that  whole  railroad  scene, 
he  substantially  performs  a  dramatic  composition  which 
is  covered  by  the  owner's  copyright." 

In  Fischel  v.  Lueckel,^^  involving  the  infringement  of 
the  copyright  of  a  photogra\aire,  the  court  said: 

"The  appropriation  of  part  of  a  work  is  no  less  an  in- 
fringement than  the  appropriation  of  the  whole,  pro- 
\dded  the  alleged  infringing  part  contains  any  substantial 
repetitions  of  any  material  parts  which  are  original  and 
distinctive." 

Where  the  infringement  of  a  dramatic  composition 
was  involved,^-  Seaman,  J.,  quoting  from  an  earlier  case  ^' 
stated : 

"As  the  owner  of  material  possessions  may  assert  his 


also:  Farmer  v.  Elstner  (1888),  'SS 
Fed.  (C.  C.)  494,  and  Drone  on 
CopjTight,  p.  408,  and  cases 
therein  cited.     * 

''Fisfwl  V.  Lueckd  (1S92),  5:3 
Fed.  (C.  C.)  499. 

See  also:  Falk  v.  Donuldson 
(1893),  57  Fed.  ((\  ('.)  .32,  where 
the  court  said:  "But  the  real 
question  is  not  one  as  to  admis- 
sion of  fact,  but  whether  the 
lithograph  is  an  illegal  ai)propria- 
tion  of  the  sjib.slanlial  parts  of 
the  photfjgraph.  In  such  a  case 
the  irKjuiry  always  is  whether  the 
alleged  infringer  has  apjjropriated 


the  results  of  the  original  concep- 
tion of  the  artist.  It  is  not  a 
question  of  quantity  but  of 
quality  and  value;  not  whether 
the  part  appropriated  is  a  literal 
copy  of  the  original  production, 
but  whether  it  is  a  subslaritial 
ami  material  part." 

See  also:  Gray  v.  Russell  (1839), 
1  Story,  11;  Folsom  v.  Marsh 
(1841),  2  Story,  115. 

^■^  Maxwell  V.  Goodwin  (1899), 
93  Fed.  (C.  C.)  665. 

"  Stowe  V.  Thoynas  (1853),  Fed. 
Cas.  (C.  C.)  No.  13,514. 


• 


PRIMARY   TEST  ')()') 

rights  wherever  or  in  whatever  disj^uise  liis  profjerty  is 
found,  so  the  author  of  a  hterary  composition  may  claim 
it  as  his  own  in  whatever  language  or  form  of  words  it  can 
be  identified  as  his  ])roduction.  The  true  test  of  piracy 
then  is  not  whether  a  composition  is  copied  in  the  same 
language  or  in  tlie  exact  words  of  the  original,  but  whether 
in  substance  it  is  reproduced,  not  whether  the  whole,  but 
a  material  part  is  taken.  .  .  .  The  controlling  question 
is  whether  the  su])stance  of  the  work  is  taken  witlKJUt 
authority." 

The  court,  continuing,  in  holding  that  defendant's 
I)lay  did  not  infringe,  said: 

"When  the  two  plays  are  compared,  read  either  as  an 
entire  production  or  in  detail  in  any  parts  or  form  I  can 
find  no  copying  in  plot,  scene,  dialogue,  sentiment,  char- 
acters or  (h-amatic  situations,  and  no  similarity  aside 
from  the  general  features  and  subjects  .  .  .  indeed  there 
is  marked  dis?iimilarity  in  the  portrayal  of  all  the  char- 
acters and  in  thought,  treatment  and  expression  both  in 
detail  and  tlu'oughout  the  plays." 

In  another  case  ^^  it  was  held  that  there  was  no  in- 
fringement between  the  two  plays: 

''Analyzing  the  details  of  the  situation  as  presented 
in  these  two  plays,  the  points  of  essential  difference  so 
far  outnumber  the  points  of  similarity  that  it  is  difficult 
to  understand  how  anyone  could  persuade  himself  that 
the  one  was  Ijorrowed  from  the  other." 

A  published  story  in  a  magazine  was  held  infringed 
by  the  performance  of  a  dramatic  composition  in  Dam  v. 

.  1'  Ihcbgcs  V.  Iklasco  (1904),  130  Fed.  (C.  C.)  3SS. 


566  THE    LAW    OF    MOTION    PICTURES 

Kirk  LaShelle,^'  one  of  the  leading  American  cases.  There 
the  theme  of  the  story  was  the  change  of  the  disposition 
and  character  of  "Dan"  the  central  figure,  from  a  man  of 
submissive  temperament  in  his  household  and  towards 
his  wife  and  mother-in-law,  to  a  man  of  commanding 
and  asserting  mien  upon  his  becoming  a  father.  The 
court  held  that  the  theme  of  the  story  was  ''substantially" 
imitated  in  the  defendant's  play: 

"  It  is  true  the  dialogue  of  the  drama  is  not  in  the  words 
of  the  copyrighted  story;  but  its  exact  phraseology  was 
not  necessar>^  to  the  adaptation  of  the  plot  or  subject  or 
the  portrayal  of  the  different  characters  to  the  play  .  .  . 
it  is  enough  if  the  essence  of  a  play  is  taken  from  an  origi- 
nal literary  production.  ...  He  has  cleverly  staged 
the  play  and  by  the  use  of  language  and  characters 
has  given  the  subject  of  the  story  an  excellent  inter- 
pretation. But  this  is  unimportant,  if  he  has  taken,  as 
I  think  he  has,  the  substance  of  complainant's  author- 
ship." 

On  affirmance  ^^  the  Cu-cuit  Court  of  Appeals 
held: 

"The  playwright  expanded  the  plot.  He  made  a  suc- 
cessful drama.  The  story  was  but  a  framework.  But 
the  theme  of  the  story  is  the  theme  of  the  play,  viz.:  the 
change  produced  in  the  character  of  a  husband  by  be- 
coming a  father." 

A  i)ra('tical  method  of  arriving  at  the  conclusion  of 

">  Datn  V.  Kirk  L<t  Shclle  (1908),  See  also:  for  a  case'  wlicn*  thcn^ 

106  Fed.  ((".  ('.)  .W.I.  is  lui  appropriation  of  a  tluMne: 

^'^  Dam  y.  KirklM  Shdlc  (imO),  J'Jisfddt   v.   Campbell   (11)09),   171 

17-)  Fed.  (C.  C.  A.)  902.  Fed.  (C.  C.)  594. 


PRIMARY   TERT 


')(; 


infringement  or  no  infringement  has  been  expounded  Ijy 
Judge  Mayer  in  Vernon  v.  ShuberV   He  says: 

"The  only  way  to  arrive  at  a  conclusion  on  the  merits 
in  a  ca.'iC  like  this  is  to  endeavor  to  discover  the  theor>' 
of  the  play,  and,  generally  speaking,  the  method  of  its 
execution." 

Attention  may  be  here  called  to  the  extensive  litigation 
which  grew  out  of  the  infringement  of  the  ])lay  "Under 
the  Gaslight."  Many  interesting  copyright  questions 
were  at  one  time  or  another  passed  upon  by  the  courts  in 
the  course  of  these  controversies.  A  statement  giving 
the  history  of  the  Utigation  will  be  found  below.  •^ 


"  Vernon  v.  Shubert  (1915),  220 
Fed.  (D.  C.)  694. 

See  also:  Nethersole  v.  Bell 
(Rn^.)  (1903),  Times,  July  4,  31, 
which  invulvcd  the  right  of 
defendant  to  produce  a  play 
"Saplio"  written  by  a  M.  Es- 
j)inasse.  Held  that  there  was  a 
substantial  i)irating;  of  situation 
and  plot  from  "Sapho"  written 
by  Clyde  Fitch,  and  injunction 
was  granted. 

'""Under  the  Gaslight."  In 
the  extensive  litigation  growing 
out  of  the  infringement  of  the 
play  "Under  the  Gaslight"  many 
interesting  copyright  (juestions 
were  at  one  time  or  another 
passed  upon  by  the  courts.  The 
first  ca.se  was  for  infringement  of 
the    railroad    scene,    where    the 


court  found  in  favor  of  the  plain- 
tiff. Daly  V.  Palmer  (1S68),  G 
Blatch.  (D.  C.)  256.  This  deci- 
sion was  never  appealed  from. 

The  second  action  first  came 
up  in  the  form  of  an  application 
for  injunction  pendente  lite  which 
was  denied,  Daly  v.  Brady  (1889), 
39  Fed.  (C.  C.)  265,  ui^on  the 
gnjund  that  there  was  a  material 
variation  in  the  title  as  filed  and 
the  title  as  used. 

On  final  hearing  the  Hill  of 
Complaint  was  dismissed,  the 
court  following  the  decision  on 
the  motion.  Daly  v.  Wehi^ter 
(1891),  47  Fed.  (C.  C.)  903. 

An  api)eal  was  taken,  and  the 
Court  of  Apjjeals  reversed  the 
Circuit  Court,  and  remanded  the 
case  with  instructions  to  enter 


568 


THE    LAW   OF  MOTION   PICTURES 


Section  159. — Common  sources. 

The  usual  defense  set  up  in  an  infringement  action  is 
that  complainant  and  defendant  have  derived  their  works 
from  a  common  source,  which  is  in  the  pubUc  domain; 
or  that  complainant's  theme  is  a  part  of  the  common 
stock  of  literary  material;  and  that  complainant's  copy- 
right does  not  protect  that  which  is  public  property, 
a  decree  for  an  account  and  in-      after  plaintiff  moved  for  a  new 


junction  [Daly  v.  Webster  (1892), 
56  Fed.  (C.  C.  A.)  483,  1  U.  S. 
App.  573],  on  the  ground  that 
the  variation  in  the  titles  was 
immaterial,  and  there  had  been 
an  infringement. 

After  the  coming  in  of  .the 
master's  report  and  entry  of 
final  decree,  an  appeal  was  taken 
by  the  defendant,  and  the  decree 
was  affirmed  without  opinion. 
Webster  v.  Dahj,  11  U.  S.  App. 
791. 

The  appeal  was  dismissed  by 
the  Supreme  Court.  Webster  v. 
Daly  (1895),  163  U.  S.  155,  16 
Sup.  Ct.  961. 

The  final  decree  in  that  action 
did  not  provide  for  profits.  There- 
upon a  new  action  was  com- 
menced to  recover  statutory  dam- 
ages for  the  infringement  [Daly 
v.  Brady  (1895),  69  Fed.  (C.  C.) 
285],  and  judgment  was  entered 
in  favor  of  the  defendant  on  the 
ground  that  insufficient  testi- 
mony   was    presented.      There- 


trial  which  was  granted.  The 
cause  came  on  before  the  same 
judge,  and  judgment  was  found 
in  plaintiff's  favor. 

An  appeal  was  taken,  and  the 
judgment  was  affirmed.  Brady 
V.  Daly  (1897),  83  Fed.  (C.  C.  A.) 
1007,51U.  S.App.  621. 

On  writ  of  error  to  the  U.  S. 
Supreme  Court  judgment  was 
affirmed.  Brady  v.  Daly  (1899), 
175  U.  S.  148,  20  Sup.  Ct. 
62. 

"The  Octoroon."  Another  play 
productive  of  copyright  litigation 
was  that  entitled  "Tlie  Oc- 
toroon." The  opinions  will  be 
found  to  contain  valuable  discus- 
sions on  the  law  of  literary  \m)\y- 
erty.  Boucicault  v.  Fox  (1862),  5 
Blatch.  (D.  C.)  87;  Boucicault  v. 
Wood  (1H67),  2  Biss.  (C.  C.)  34. 
And  in  the  play  "Sliougliraun" 
reported  in  Boucicaidt  v.  Hart 
(1875),  13  Blatch.  (D.  C.)  47,  and 
BonncauU  v.  Chattrrton  (Eng.) 
(1876),  5  Ch.  Div.  267. 


COMMON    SOURCES 


r>GO 


In  a  case  whore  both  the  complainant's  j)lay  and  the 
defendant's  motion  picture  were  alleged  to  ha\e  been 
based  upon  a  foreign  work  which  was  in  the  public  domain, 
the  test  of  infringement  in  such  case  was  stated  by  the 
court  as  follows: 

"Defendants  would  undoubtedly  have  the  right  to 
make  an  independent  translation  of  their  own,  with  such 
modifications  as  their  own  ingenuity  might  suggest. 
They  had  no  right,  however,  to  transfer  into  their  own 
adaptation  variations  from  and  additions  to  the  French 
play  wliich  w^ere  original  with  Jackson  (complainant's 
assignor)  who  first  translated  it  and  copyrighted  it  here."  '' 

The  courts  have  recognized  the  fact: 

"That  the  points  of  similarity  in  two  dramatizations 
of  the  same  novel  must  necessarily  be  much  greater  than 
should  be  possible  in  any  two  original  dramas,  if  each 
were  written  entirely  independent  of  any  knowledge  of 
the  other."  -" 

Judge  Story  has  held  that: 

"It  has  been  truly  said,  that  the  subject  of  both  of 
these  works  is  of  such  a  nature  that  there  must  be  close 


^^Slevemon  v.  Fox  (1915),  226 
Fed.  (D.  C.)  9i)(). 

Cold  mark  v.  Kreling  (1888),  35 
Fed.  (C.  C.)  GOl.  For  a  careful 
analysis  of  two  i)lays  alleged  to 
ho  derived  from  a  coinmon  source 
showing  what  suffices  to  .show  in- 
fringement. 

Daly  V.  Palmer  (1868),  6 
Blatch.  256.  "The  true  test  of 
whether  there  is  piracy  or  not,  Is 


to  ascertain  whether  there  is  a 
servile  or  evasive  imitation  of  the 
plaintiff's  work,  or  whether  there 
is  a  bona  fide  original  compilation, 
made  up  from  common  materials, 
and  common  sources,  with  resem- 
blances which  are  merely  acci- 
dental, or  result  from  the  nature 
of  the  subject." 

-"Mxon  v.  Doran  (1900),  168 
Fed.  (C.  C.)  575. 


570 


THE    LAW   OF   MOTION   PICTURES 


resemblances  between  them.  But  the  real  question  on 
this  point  is  not  whether  such  resemblances  exist,  but 
whether  these  resemblances  are  purely  accidental  and 
undesigned,  and  unborrowed  because  arising  from  com- 
mon sources  accessible  to  both  the  authors,  and  the  use 
of  materials  open  equally  to  both;  whether,  in  fact,  the 
defendant  Davies  used  the  plaintiff's  work  as  his  model, 
and  imitated  and  copied  that,  and  did  not  draw  from 
such  common  sources  or  common  materials.-^ " 

Where  it  is  contended  that  the  theme  of  complainant's 
work  is  one  which  is  part  of  the  common  stock  of  ideas, 
one  which  has  been  used  by  authors  and  playv\Tights  for 
many  years,  the  defendant  will  not  be  restrained  unless 
he  has  gone  directly  or  indirectly  to  the  complainant's 
work  and  taken  that  portion  of  it  which  is  the  creation 
of  the  complainant, — that  is  to  say,  the  complainant's 
embellishment  and  original  treatment  will  be  jealously 
guarded  by  the  courts.-  But  no  author  will  be  permitted 
to  appropriate  unto  himself  a  literary  theme  to  the  ex- 
clusion of  others.'^ 


^^  Emerson  v.  Davies  (1845), 
Fed.  Cas.  No.  4,436,  and  see 
3  Story,  76S. 

See  also:  Pike  v.  Nicholas 
(Eng.)  (18G9),'  5  Ch.  App.  251. 
"When  once  it  was  established 
that  there  were  common  sources  it 
would  be  naturally  expected  that 
there  would  l)C  great  similarity  in 
the  statements  of  the  facts  which 
were  narrated  from  Oiose  com- 
mon sources.     Acc(jrdiiigly  there 


might  be  traced  throughout  the 
work  of  the  defendant  a  great 
similarity  to  the  outline  and 
plan  of  that  of  the  plaintiff." 

^^  Aronson  v.  Fleckenstein 
(18S6),2SFed.  (C.  C.)  75. 

"Nixon  V.  Doran  (I'M)!)),  lOS 
Fed.  (C.  C.)  575.  "In  the  same 
way  a  copyright  of  the  tlramatiza- 
tiou  of  a  novel,  if  the  novel  is 
free  to  the  wf)rld  by  the  expini- 
tion    of    the    original    copyright, 


COMMON    SOURCES 


i71 


Judge  Larom})c  has  humorously  illustrated  the  rule 
m  the  followhig  language: 

"There  is  nothing  original  in  the  incident  thus  repre- 
sented on  the  stage.  Heroes  and  heroines,  as  well  as 
villains  of  both  sexes,  have  for  a  time  whereof  the  memory 


can  protect  merely  the  original 
j)<)rtioi)s  of  the  drama,  and  the 
original  arrangement  of  scenes 
and  characters  in  so  far  as  they 
arc  not  an  exact  reproduction  of 
th(!  hook." 

(Jlascr  V.  ,S7.  Elmo  (1909),  175 
Fed.  (C.  C.)  276.  Holt,  D.  J.: 
"By  the  expiration  of  the  term 
of  the  copyright  of  the  novel,  how- 
ever, any  person  could  make  any 
use  of  the  novel  which  he  .saw 
fit.  He  could  copy  it  or  publish 
or  make  a  play  of  it.  It  was  no 
longer  protected  by  the  copy- 
right act.  But  although  a  per- 
son could  make  a  play  from  the 
novel,  using  its  plot  and  inci- 
dents in  such  play,  he  could  not 
copy  the  play  of  'St.  Klmo,' 
already  written  and  copyrighted, 
furtlicr  than  to  make  such  a 
general  use  of  the  plot  and  inci- 
dents of  the  novel  as  was  open 
to  the  public  generally." 

Slmms  V.  Staninn  (1X90),  75 
Fed.  (C.  C.)  6.  "The  copyright 
obtained  by  complainant  for  liis 
works  did  not  jirotcct  him  in  the 
use  of  material  which  had  orig- 


inated or  had  been  utilized  by 
some  previous  writer  on  the  same 
subject." 

Robl  V.  Palace  Theatre  (Eng.) 
(1911),  28  T.  L.  R.  (59.  The 
representation  of  a  dramatic  piece 
in  which  the  similarities  to  a  piece 
previously  produced  are  due  to 
mere  coincic^lence — both  plaN's 
being  de/ived  independently  from 
the  common  stock  of  dramatic 
ideas — is  not  an  infringement  of 
the  rights  given  by  the  Dramatic 
Copyright  Act  1S33,  to  the  au- 
thor of  the  play  first  produced. 

See  in  this  connection:  Griggs 
V.  Perrin  (1892),  49  Fetl.  (C.  C.) 
15.  "A  party  may  invent  a  new 
machine  and  write  a  book  descril>- 
ing  it  for  which  he  may  obtain  a 
copyright.  This  does  not  pre- 
vent another  author  from  de- 
scribing the  same  machine.  He 
must  not  copy  the  copyrightetl 
book,  but  he  may  write  one  of 
his  own.  .  .  .  The  copyrighted 
book  is  sacred,  but  not  the  sut>- 
jcct  of  which  it  treats." 

See  also:  Burnell  v.  Chowii 
(1895),  09  Fed.  (C.C.)  993. 


572  THE    LAW   OF   MOTION    PlfTURES 

of  the  theatre-goer  runneth  not  to  the  contrary,  been 
precipitated  into  conventional  ponds,  lakes,  rivers  and 
seas.  So  frequent  a  catastrophe  may  fairly  be  regarded 
as  the  common  property  of  all  plaj^Tights."  -'' 

In  Vernon  v.  Shubert,-'^  the  court  speaking  of  themes 
upon  which  authors  draw  for  their  Hterary  productions  said : 

''Of  course,  as  so  often  happens,  there  are  some  char- 
acters in  both  plays  having  a  similarity,  and  there  are 
here  and  there  some  instances  of  similar  phraseolog}'. 
But  that  is  a  very  old  story  in  playwriting,  because,  after 
all,  there  are  not  so  many  themes  around  which  a  play 
may  be  plotted.  Secret  marriages,  district  attorneys, 
murders,  office  boys,  blackmailing,  good  people  and  bad 
people  have  walked  about  behind  the  footlights  for  many 
a  day." 

And  again  the  same  court  said : 

"It  is  to  be  expected  that  two  playwrights  writing 
independently  from  a  common  source  may  develop  similar- 
ity in  their  plots  and  in  their  lines."  -" 

On  affirmance  the  Circuit  Court  of  Appeals  held  that: 

"This  does  not  entitle  the  person  who  first  presents 
that  suggested  situation  in  a  copjTighted  play  from  de- 
priving other  persons  to  whom  the  same  situation  nat- 
urally presents  itself,  upon  perusal  of  the  narrative  which 
is  the  common  source,  from  also  presenting  it  in  a  book 
or  a  play,  provided  that  the  later  one  gets  the  idea  from 
the  common  source,  not  from  the  copyrighted  play.'"-' 

^*Serrena  v.  Jefferson   (1S8S),  ^^  Bachmati  v.   Bela^co    (1013), 

33  Fed.  (C.  C.)  347.  224  Fed.  (D.  C.)  815. 

»  Fernon  v.. S/)7i/)er/ (101.5),  220  ^Uinchman  v.   Rclnacn    (1013), 

Fed.  (D.  C.)  004.  224  Fed.  (C.  C..A.)  817. 


COMMON    SOURCES 


573 


Judge  Lacombe  states  the  proposition  as  follows: 
"The  copyright  cannot  protect  the  fundamental  plot 
which  was  common  property  long  before  the  storj'  was 
written;  it  will  protect  th(;  embellishment  with  which  the 
author  added  elements  of  literary  value  to  the  old  plot, 
but  it  will  not  operate  to  i)rohibit  the  presentation  by 
someone  else  of  the  same  old  plot  without  the  particular 
embellishments."  -^ 

A  practical  test  commonly  used  in  the  case  of  works 
based  upon  a  common  source  is  to  see  whether  the  altera- 
tions, omissions  and  additions  which  first  appeared  in 
the  complainant's  version  are  followed  by  the  defend- 

ant.2« 

In  connection  with  the  apphcation  of  this  test,  absence 


On  the  question  whether  defend- 
ant may  make  luie  of  complainwiVs 
work  where  the  same  is  based  upon 
common  properltj,  see  Johnson  v. 
DonaUson.  {IS80) ,  3  Fed.  (C.  C.) 
22;  aiaser  v.  St.  Elmo  (1909),  175 
Fed.  (C.  C.)  27G;  Stevenson  v.  Fox 
(1915),  22G  Fed.  (D.  C.)  990. 

^London  v.  Biograph   (1916), 

231  Fed.  (C.  C.  A.)  696. 

See  also  on  tlie  same  question: 
Bobbs-Merrill  v.  Equitable  (1916), 

232  Fed.  (D.  C.)  791;  StevenJion  v. 
Harris  (1917),  238  Fed.  (D.  C.) 
432;  Eichel  &  Colligan  v.  Woods 
(1917),  District  Court  of  the 
United  States  Southern  District 
of  New  York,  Manton,  J.,  April 
2d. 


^^  Stevenson  v.  Fox  (1915),  226 
Fed.  (D.  C.)  990;  O'Neill  v.  Gen. 
Film  Co.  (1916),  157  N.  Y.  Supp. 
1028. 

See:  Recs  v.  Robbin.'i  (1914), 
London  Times,  Jan.  29,  Feb.  14, 
and  July  4,  for  a  careful  ex- 
amination of  two  plays  by  the 
court  where  the  contention  was 
that  the  material  in  both  plays 
was  taken  from  the  common 
stock  of  ideas. 

See  also:  Jacobson  v.  De  MiUc, 
District  Court  of  the  United 
States,  Southern  District  of  New 
York,  opinion  by  Slicppard,  J., 
October  1,  1916,  wliere  the  same 
defense  was  interposed  in  an 
action  for  infringement  of  a  play. 


574 


THE    LAW   OF   MOTION   PICTURES 


of  any  proof  from  the  person  who  produced  defendant's 
work  to  explain  the  reasons  for  the  same  variations  from 
the  original  work  will  be  construed  against  the  defendant.^'' 


Section  160. — Substantial  similarity  by  coincidence. 

It  was-  held  in  an  earUer  line  of  cases  that  where 
the  similarity  or  identity  between  two  works  was  caused 
by  mere  coincidence,  each  author  working  independently 
of  the  other,  no  cause  of  action  existed  for  infringement  of 
either  a  statutory  copyright  "  or  the  common-law  right 
in  an  unpublished  work.^- 

An  extreme  late  case  ^^  where  this  principle  was  applied 
was  one  where  the  action  was  based  on  the  common-law 
rights  in  a  well-known  unpublished  play  "Peg  O'  My 


^°  O'Neill  V.  General  Film  Co. 
(1915),  157  N.  Y.  Supp.  1028; 
Stevenson  v.  Fox  (1915),  226  Fed. 
(D.  C.)  990. 

See  also:  Bleistein  v.  Donaldson 
(1903),  188  U.  S.  239;  23  Sup.  Ct. 
298. 

^' Reed  v.  Carusi  (1845),  20 
Fed.  Cas.  (C.  C.)  11,642. 

John.son  v.  Donaldson  (1880), 
3  Fed.  (C.  C.)  22.  "If  eacli  of 
two  persons  should  compose  a 
j)0(!in  id(;ritically  alike,  lie  who 
first  composed  it  would  have  no 
priority  of  title  over  the  other, 
nor  would  he  acquire  priority  by 
first  publishing  it.  The  law  of 
copyright  would  j)rotect  each 
in  hit)  own  manuscript,  but  would 


not  prevent  either  from  using 
his  own. 

S.  S.  White  Dental  Co.  v.  Sibley 
(1889),  38  Fed.  (C.  C.)  751.  "If 
he  (def(;ndant)  devised  the  same 
plan  in  ignorance  of  what  the 
plaintiff  had  done,  it  is  clear,  we 
believe,  that  he  has  not  in- 
fringed. ..." 

See  also:  Schwarz  v.  Wylic 
(Eng.)  (1911),  Times,  Nov.  17; 
Reichart  v.  Saple  (I'^ng.)  (1893), 
2  Q.  R.  308. 

•■•-  Morocco  V.  Fc.nddl,  State  of 
Wi.sconsin,  (Circuit  (!ourt,  Fond 
du  Lac  County,  opinion  of  Judge 
Chester  A.  Fowler,  March  31, 
1917. 

^■1  Morosco  V.  Fendcll,  supra. 


SUBSTANTIAL    SIMI I-AKITV    UV    COINCIDENCK  575 

Heart."  Not  only  was  tlio  theme  identical,  but  a  nunilxir 
of  the  situations  and  the  title  as  well  were  similar  and  the 
names  of  (he  two  chief  characters  were  alike.  The  court, 
nevertheless,  f(jund  no  infringement,  as  it  was  .satisfied 
that  the  defendant  had  conceived  and  written  his  play 
without  having  ever  read,  seen  or  heard  of  the  plaintiff's 
drama. 

The  law  is  expressed  by  the  learned  court : 
"Priority  of  conception  and  completion  and  produc- 
tion altogether  do  not  give  the  plaintiff  the  right  to  enjoin 
the  production  of  the  defendant's  i)lay,  unless  the  latter 
was  ba.sed  or  founded  uj)on  the  former;  unless  it  was 
copied  from  or  made  in  imitation  of  it;  unless  the  former 
was  used  in  the  production  of  it,  so  that  the  latter  is  a 
reproduction  of  the  former;  unless  the  latter  was  'pirated' 
from  the  fonner.  Even  substantial  similarity,  founded 
upon  coincidence,  and  not  the  result  of  piracy,  direct  or 
indirect,  is  insufficient  to  establish  infringement  (citing 
cases).  This  is  stated  of  copp-ight  matter,  but  with 
e(iual  or  greater  reason  it  woukl  be  true  of  non-copyright etl 
matter.  It  is  the  taking  and  appro])riation  by  one  person 
of  the  literary  work  of  another  that  is  jirohilMted.  If  one 
play  is  as  much  the  original  conception  and  the  result  of 
the  original  mental  labor  of  the  one  producing  it  as  another 
play  is  of  its  author,  the  authors  are  equally  entitled  to 
the  fruits  of  their  original  labors,  notwithstanding  the 
works  be  similar.  Tliis  seems  to  me  the  common  sense 
view  of  the  matter." 

This  principle,  however,  has  been  modified  lately  with 
respect  to  works  protected  under  the  CojnTight  Act. 
The  federal  courts  take  the  position  that  since  sole  and 


576  THE   LAW   OF   MOTION    PICTURES 

exclusive  rights  are  granted  by  the  copyright,  any  inva- 
sion of  them,  whether  made  innocently  through  coin- 
cidence or  otherwise,  subjects  the  invader  to  an  action 
by  the  owner  of  the  rights. 

''Defendant  contends  that  in  order  to  infringe  a  copy- 
right the  defendant  must  have  actually  copied  or  pu-ated 
the  production  of  the  plaintiff,  and  not  merely,  while 
ignorant,  have  himself  produced  substantially  the  same 
thing.  .  .  . 

"The  cause  now  before  me  involves  only  the  property 
right  of  the  original  composer  in  his  copyright.  The  act 
in  force  when  this  copyright  was  issued  (citing  case) 
provides  that  the  author  of  a  musical  composition,  upon 
complying  with  the  provisions  of  the  Copyright  statute, 
shall  have  the  sole  liberty  of  printing,  publishing  and 
vending  the  same.  We  are  referred  to  no  authority,  and 
know  of  no  reason  for  holding  that  the  person  to  whom 
the  right  is  secured  may  not  maintain  it  by  injunction 
against  another  person  who  threatens  to  invade  it."  '" 

The  present  condition  of  the  law  may  be  said  to  be 
that  where  the  complainant  relies  upon  his  common-law 
rights,  he  must  establish  piracy.  Wlicro,  however,  the 
action  is  based  upon  a  statutory  copyright,  it  is  suflicient 

^*Hein  v.  Harris   (1910),   183  that,  under  the  English  Copyright 

Fed.   (C.   C.   A.)    107;  Jiff'g  175  Act  of  1911,  where  the  snnilarity 

Fed.  875.  in  hoth  works  is  by  coincidence 

liut  see:  Corelli  v.  dray  (Eng.)  there   is   no   remedy   under   the 

(1<)13),  Times,  May  21 ,  22,  23,  24,  act  for  infriiigcrn(>nt. 

June  5  and  Nov.  21.     This  case  To    the   sanu;   elTect:    Rohl   v. 

takes  the  opposite  view  adopted  Palace    Theatre    (Eng.)     (1911), 

hy  the  Federal  court  in  Uein  v.  Times,  Nov.  14,  17. 
Harris.      Here    the    court    holds 


WHO    MAY    MAINTAIN    ACTION,    ETC.  OU 

to  show  an  invasion  of  such  statutory  rifiht.  It  is  imma- 
tmal  wlu'thcr  sucli  invasion  has  been  caused  l>y  coinci- 
dence, accident  (where  defendant  beUeves  plaintiff's  work 
to  be  in  the  public  domain)  or  piracy. 

It  is  obvious  that  the  copyrighting  of  a  work  confers  at 
least  this  one  advantage  which  is  not  secured  under 
common  law. 

Section  161. — Who  may  maintain  action — Misjoinder 
of  parties—  Joinder  of  causes  of  action. 

Under  the  Act,^^  the  action  for  infringement  may  be 
maintained  by  the  proprietor  of  the  copyright,  and  it  is 
immaterial  whether  he  is  the  proprietor  of  record  or  an 
assignee  of  the  copyright  whose  assignment  has  not  been 
recorded, ^^  since  the  section  respecting  the  recording  of 
assignments  protects  subsequent  purchasers  or  mort- 
gagees for  value,  but  has  no  reference  to  infringers. 

Of  course,  when  the  proprietor  has  not  parted  with 
any  of  the  rights  secured  under  the  copyright  either  by 
way  of  sale  or  license,  he  is  the  only  proper  party  plaintiff 
to  the  action. 

A  frequent  situation,  however,  that  presents  itself,  is 
one  where  the  ]iro])rietor  has  either  made  an  assigimient 
or  granted  a  license^  with  respect  to  some  of  his  rights, 
and  the  party  who  is  injured  by  the  infringement  is  not 
the  cop>Tight  proprietor,  but  on  the  contrar>',  is  his  as- 
signee or  licensee. 

"Section  2.'),  sulxlivisiou   (1)).  '•  AVif  Fidion  Co.  v.  Star  Co. 

See  also:   Hanxr   d-    Bros.   v.       (1915),  220  Fed.  (D.  C.)  994. 
Donahue  (1905),  lit  Fed.  (C.  C.) 
491. 


578 


THE    LAW   OF   MOTION    PICTURES 


Although  the  law  is  clear  that  where  an  assignee  of 
some  of  the  rights  is  injured,  he  is  a  proper  party  plaintiff, 
together  with  the  copyright  proprietor,  yet,  where  a 
hcensee  has  been  harmed,  the  law  is  not  entirely  clear  as 
to  whether  or  not  such  licensee  should  be  joined. 

It  is  well  settled  that  a  licensee  cannot  in  any  event 
sue  in  his  own  name  alone.^^  It  would  seem,  however, 
that  where  the  rights  granted  to  the  licensee  are  infringed 
upon  by  the  defendant,  then  such  licensee  may  sue  in  his 
own  name  providing  he  joins  in  his  action  the  legal  owner 
of  the  entire  copyright. 

Gaumont  v.  Hatch  decided  in  1913,  seems  to  support  the 
last  mentioned  rule.^^    There  the  Gaumont  Co.,  owner  of  a 

"  Wooster    v.     Crane     &     Co.      London  and  suburbs.   Defendants 


(1906),  147  Fed.  (C.  C.  A.)  515. 
"It  is  the  general  rule  that  a 
mere  licensee  cannot  in  its  own 
name  sue  strangers  who  infringe. 
Birdsell  v.  Shaliol,  112  U.  S.  485. 
Here,  however,  the  complainant 
is  not  a  mere  licensee,  but  has 
the  full  equitable  title,  and 
Wooster,  Avho  has  the  legal  title, 
is  one  of  the  infringers  and  oc- 
cupies a  position  altogether  hos- 
tile to  the  complainant." 

See  also:  New  Fiction  v.  Slur 
(1915),  220  Fed.  (1).  C.)  994. 

Neilson  v.  Jlorniman  (I'^ng.) 
(1909),  20  T.  L.  R.  188,  C. 
A.  Copyright  owners  of  play 
granted  plaintiff  "the  sole  li- 
cense" to  produce  play  for  a 
period    of    one    year    except    in 


produced  the  play  at  Manchester 
without  having  secured  permis- 
sion of  plaintiffs.  Held,  that  as 
plaintiff  did  not  hold  an  assign- 
ment of  acting  rights  but  only  a 
"  sole  license"  he  had  no  title  to 
sue  in  his  own  name. 

See  also:  Mackay  v.  Edwardes 
(Eng.)  (1906),  Times,  Jan.  .30, 
April  27. 

38  Gaumont  v.  Hatch  (1913),  20S 
Fed.  (D.  C.)  378.  The  lessor  of 
a  film  and  his  lessees  are  all  proper 
parties  plaintiff  in  an  action 
brought  for  infringement  of  tiie 
film. 

Young,  I).  J.:  "It  appears  from 
the  ;i]l('gations  of  the  bill  as 
aiuciided  that  the  ( launioiit  ( 'oiii- 
pany  is  the  owner  of  tlie  film  and 


WHO    MAY    MAINTAIN    AJTKJN,    KTf 


.■>79 


motion  picture  film,  had  leased  coi)ies  of  the  film  to  the 
other  i)laintilTs  in  the  action,  Sciiwalm  and  Uothleder, 
for  a  specified  period,  and  for  exhibition  within  a  limited 
territory.  The  lease  provided  for  a  return  of  the  films 
upon  the  termination  of  the  lease.  The  court  held  that 
the  Gaumont  Co.  having  a  present  existing  beneficial 
interest  in  the  films,  and  their  lessees,  were  all  proper 
parties  ])laintifT  to  the  action,  under  Equity  Rule  nine- 
teen, which  provides  that  all  persons  having  an  interest 
in  the  subject  in  the  action  in  obtaining  the  relief  de- 
manded, may  join  as  plaintifTs. 


tlui  lessor  and  is  entitled  to  have 
the  lihn  returned  at  the  termina- 
tion of  the  lease.  It  is  therefore 
interested  in  preventing  by  in- 
junction the  removal  of  the  film, 
or  any  copy  thereof,  beyond  the 
jurisdiction  of  this  court,  as  such 
removal  into  another  jurisdiction, 
would  result  in  the  necessity  of 
more  and  probably  of  a  multi- 
plicity of  suits.  The  lessees, 
Schwalm  and  Rothleder,  are  in- 
terested in  preventing  the  ex- 
hil)iti()n  of  the  film  at  any  other 
place  within  the  territory  secured 
to  them  by  the  lease.  They  have 
a  vital  interest  in  the  relief  sought, 
lioth  the  lessor,  the  (laumont 
Company,  and  the  lessees, 
Schwalm  and  Rothleder,  are  par- 
ties in  interest,  and,  under  the 
iiincfeenth  rule  in  equity  (I!>S 
I'wl.  .x.wiii,  115  C  C.  A.  .vwiii) 


are  proper  parties  plaintiff.  This 
ground  of  dismissal  nmst  there- 
fore be  overruled. 

See  also:  Worlhiiigtun  v.  lially 
(1889),  40  Fed.  (C.  C.)  479. 
PlaintifT  contracted  with  an  au- 
thoress for  the  publication  of  her 
book.  In  violation  of  her  agree- 
ment she  subsequently  allowed 
a  newspai)er  to  print  the  book, 
and  plaintilT  l)rought  suit  to 
restrain  the  pajKT.  Motion  for 
preliminary  injunction  wius  de- 
nied because  the  authoress  who 
had  an  interest  in  the  copyriglit 
should  have  been  made  a  party 
to  the  action. 

See  also:  Mdcmilldn  v.  Dent 
(Kng.)  (1900),  Times,  Nov.  8,  23 
T.  L.  H.  4.").  The  proprietor  and 
liis  licensee  may  join  as  co- 
plaintitTs  in  the  action. 


580  THE    LAW   OF   MOTION    PICTURES 

The  same  rule  in  its  converse  application  is  illustrated 
in  New  Fiction  Co.  v.  Star,^^  where  the  licensee  of  the 
"serial"  rights  in  a  dramatic  composition  brought  the 
action  in  his  own  name  against  a  newspaper  which  had 
published  the  work.  The  invasion  was  clearly  of  the 
licensee's  rights.  It  was  held  that  a  mere  licensee  could 
not  maintain  an  action  in  his  own  name  for  infringement 
of  the  copyrighted  work,  since  the  statute  gave  the  right 
to  maintain  actions  for  infringement  to  the  ''copyright 
proprietor."  The  court  at  the  foot  of  its  opmion,  makes 
the  following  significant  statement: 

"It  will  be  understood  that  I  am  not  passing  on  the 
question  which  would  be  presented  if  Goodman  (the 
copyright  proprietor)  were  a  party  plaintiff." 

Tully  V.  Triangle  ^°  holds  that  where  the  rights  of  the 

^^  New  Fiction  v.  Star  (1915),  mits  alleged  infringed  upon  Tally's 
220  Fed.  (D.  C.)  994.  play.  Held  that  Espladiaii  Pro- 
See  also  the  cases  referred  to  in  ducing  Company,  had  no  in- 
the  opinion:  Jwk's  Liedertafcl  terest  in  the  subject  of  the  ac- 
Case,  L.  11.  (Eng.)  (1907),  1  Ch.  tion,  hence  an  improper  party 
651;  Emiiire  City  Aiu.  Co.  v.  Wil-  and  bill  multifarious. 
bou  (1903),  134  Fed.  (C.  C.)  132.  "From  the  foregoing  it  will  be 
*'>  Tully  V.  Triangle  (1916),  seen  that  the  Espladian  Produc- 
229  Fed.  (D.  C.)  297.  Com-  ing  Company  is  lh(^  exclusive 
j)lainant  'J'ully  was  the;  author  licensee  to  i)roduce  the  jilay 
of  an  original  dramatic  com-  'upon  the  stage  by  a  company 
position  which  he  duly  copy-  of  players,'  and  that  all  other 
righted.  Complainant  l^spladian  rights,  such  as  motion  jHcture 
Producing  Co.  was  granted  by  rights,  remain  in  and  were  re- 
Tully  the  (exclusive  license  to  serv(>d  by  Tully,  the  author, 
produce  Ihe  play  upon  the  stage  When,  therefore,  the  Espladian 
with  living  adors.  Defendant  Producing  (Company  became  such 
produced  a  film  which  complain-  licensee,  it  did  so  with  the  knowl- 


WHO    MAY    MAINTAIN    ACTION,    ETC. 


isi 


exclusivo  lironsce  arc  not  infringed  by  tho  dofendant,  lie 
is  nut  a  proper  party  to  the  action. 

In  some  instances  the  courts  have  permitted  an  exclu- 
sive Hcensee  of  portions  of  the  rights  secured  by  the  copy- 
right to  maintain  an  action  in  his  own  name  and  alone 
against  an  infringer  of  the  rights  granted  to  liim.  In 
Aronson  v.  FleckeTistein,  the  plaintiff,  while  an  exclusive 
licensee  of  the  American  rights  for  a  limited  period,  was 
})y  the  terms  of  his  license  empowered  to  bring  all  neces- 
sary suits  for  the  protection  of  his  rights,  and  copjTighted 
the  work  in  order  to  safeguard  his  rights.  It  was  held 
that  not  only  was  he  entitled  to  maintain  suit  in  his  own 
name,  but  that  he  was  the  only  one  who  could  do  so.^' 


cdRc  that  TuUy  at  any  time  and 
at  any  place  could  produce  a  so- 
called  motion  picture  photoplay, 
and  if  Tully  could  do  this,  then, 
of  course,  any  licensee  of  his 
could  do  the  same.  It  seems  to 
me  entirely  clear  that  the  Es- 
pladian  Producing  Company  has 
no  right  or  interest  in  respect  of 
the  i)rescntatio!i  hy  motion  pic- 
tures of  'A  Hird  of  Paradise.'" 

See  in  this  connection:  Mencken 
V.  Denville  (Eng.)  (Um),  Times, 
Dec.  3.  Held  tliat  the  plaintiff 
who  wa.s  a  grantee  of  the  copy- 
right proprietor  of  the  motion 
picture  rights  was  not  entitled 
to  enjoin  the  |)n)iluction  u{)on  tlu; 
stagi'  of  a  play  under  the  same 
title  although   the  owner   of   the 


copyright  might  have  been  en- 
titled to  do  .so. 

*^  Aromon  v.  Flcckensfein 
(188G),2SFed.  (C.  C.)  75. 

See  also:  Roberts  v.  Myers 
(ISGO),  20  Fed.  Cas.  No.  U,\m 
(C.  C).  "The  respondent  is  a 
mere  wrong-doer  who  has  in- 
vaded this  copyright.  ...  It  is 
(juite  clear  that  this  copyright 
being  infringe*.!  and  in  danger  of 
further  violation  by  a  {x?rson 
who  has  no  color  of  right,  the 
true  owner  ought  to  have  a 
remedy.  But  it  is  said  that 
Boucicault  (author)  ought  to 
be  the  complainant,  or  at  least 
join  with  Uol)erts.  Why  so? 
His  interest  has  not  been  in- 
vadtni    or    endangered,    nor    can 


582 


THE    LAW   OF   MOTION   PICTURES 


The  equitable  owner  of  a  copyright  is  a  proper  party 
to  an  action  for  infringement.  ^- 

Where  the  complainant  has  full  equitable  title  to  the 
copyright  and  the  legal  title  therein  is  in  one  who  is  an 
infringer,  who  occupies  a  position  altogether  hostile  to 
the  complainant,  the  owner  of  the  equitable  title  may 
maintain  the  action  in  his  own  name.^^ 

Where  a  licensee  has  an  exclusive  Ucense  under  the 
copyright  for  the  entire  term  of  such  copyright  the  courts 
by  analogy  w^ith  the  rule  followed  in  the  case  of  patents 
will  regard  the  license  as  an  assignment  and  plaintiff  will 
be  permitted  to  sue  in  his  own  name.^^ 


the  non- joinder  of  Boucicault  in 
any  way  affect  the  defend- 
ant ...  to  require  him  then  to 
be  joined  with  Roberts  would 
be  an  idle  and  nugatory  act.  ..." 

In  this  case  it  was  held  that 
the  assignee  of  the  exclusive  right 
of  representing  a  drama  for  one 
year  in  the  United  States  could 
maintain  suit  in  his  own  name. 

Hill  V.  Whaleyi  (1914),  220 
Fed.  (D.  C.)  359.  An  exclusive 
licensee  of  the  dramatic  rights 
of  copyrighted  cartoons  was 
granted  an  injunction  restraining 
the  production  of  play  wherein 
two  characters  impersonated  the 
cartoons  and  used  a  luunhor  of 
the  phriuscs  placed  intlic  mouths  of 
the  carto(m.s  by  the  original  artist. 

See  also:  Keene  v.  Wheatley 
(1801),  Fed.  Ca.s.  No.7,M4  (C.  C.) 


For  a  case  where  the  court  per- 
mitted Vie  owner  of  a  copyright 
in  the  words  of  a  song,  and  not  in 
the  music,  to  sue  for  infringement, 
see:  Francis  v.  Oliver  (Eng.) 
(1907),  Times,  March  20. 

*2  Historical  Pub.  Co.  v.  Jones 
(1916),  231  Fed.  (C.  C.  A.)  638. 

"  Wooster  v.  Crane  (1906),  147 
Fed.  (C.  C.  A.)  515.  Citing: 
Littlefield  v.  Perry  (1874),  21 
Wall.  205;  Waterman  v.  McKenzie 
(1890),  138  U.  S.  252,  11  Sup.  V\. 
334;  Excelsior  v.  Pacific  (1901), 
185  U.  S.  282;  22  Sup.  Ct.  681; 
Root  v.  Railway  (1881),  105  U.  S. 
189;  Little  v.  Gould  (1852),  15 
Fed.  Cas.  604  (C^  C.)  No.  8,395; 
Ruggks  v.  Eddy  (1872),  20  Im><1. 
C'M.  1,317  (C.  C.)  No.  12,117. 

**  Fitch  v.  Youiuj  (1911),  230 
Fed.  (D.  C.)  743. 


WHO    MAY    MAINTAIN    ACTION,    ETC.  r>83 

Where  the  rights  conveyed  by  the  author  did  not  give 
the  right  to  copjTight,  the  one  obtaining  such  rights  may 
not  copyright  the  work  or  maintain  suit  on  the  copjTight 
for  its  infringement.''' 

It  was  held  that  where  the  action  was  bnjught  )jy  the 
legal  holder  of  the  copyright,  although  the  beneficial 
ownership  thereof  was  in  another,  the  defendant  could 
not  take  any  advantage  of  the  trust  relation  existing 
between  such  legal  owner  and  some  third  party.""' 

As  to  unpublished  works,  not  copyrighted,  it  was  held 
in  Tarns  v.  Witmark;*'  that  the  "exclusive  owners  of  the 
right  to  i)roduce  and  perform"  an  operetta  in  the  United 
States  could  maintain  an  action  in  their  own  name  without 
joining  their  assignors,  the  coiirt  following  the  rule  laid 
down  in  an  earlier  case  where  the  same  situation  was 
presented.'^  This  rule  has  Hkewise  been  followed  in  the 
federal  courts.^' 

*<-Saake  v.  Lederer  (1909),  174  to  represent  the  same  in  the  New 

Foci.    (C.  C.  A.)    135;  Rev.   100  England    states,    plaintiffs    were 

Fed.  (C.  C.)  810.  gnuited    an    injnnction    and    ac- 

«  Hanson  v.  Jaccard  (1887),  32  counting  for  damages. 

Fed.. (C.  C.)  202.  *"> Guldimrk  v.  KrcUiig  (ISSS), 

"Tarns  V.  Wilmark  (1900),  30  35  Fed.   (C.  C.)  661.     Plaintiffs 

Mi.sc.  (N.  Y.)  293;  63  X.  V.  Supp.  ac(iuircd  the  .Vmcrican  rights  to 

721,  aff'd  48  A.  D.  (N.  Y.)  632;  63  the  oiKjretta   "  Xanon."     Subse- 

N.  Y.  Supp.  1117.  (luently    the    authors    published 

*»  Palmer  v.  DcWitt  (1872),  47  tiic   piano-score  in   ICurope,  and 

N.  Y.  532.  defendants    making    their    own 

See  also:  Tompkitus  v.  IlaUcck  orchestration,   produced   it   over 

(1882),    133    Mass.    32.      Where  here. 

an     unpublislied     and     uncopy-  "The  authors  certainly  could 

righted     play    wius    a.ssigned     (o  not  have  soUl  and  conveyed  any 

plaintiffs  with  the  exclusive  right  right  to  a  third  party  to  perform 


684  I^HE    LAW   OF   MOTION   PtCTUUES 

From  the  above  it  is  apparent  that  the  rule  as  to  the  join- 
der of  licensee  and  proprietor  is  not  stringently  apphed 
in  the  state  or  federal  courts  with  respect  to  unpubUshed 
uncopyrighted  works,  while  it  is  strictly  adhered  to  in  cases 
involving  statutory  copyright  infringement.  The  reason 
is  probably  found  in  the  wording  of  the  Copyright  Act 
which  gives  various  remedies  to  the  "copyright  pro- 
prietor," thereby  compelling  such  proprietor  to  be  brought 
in.  There  being  no  such  hmitation  in  common-law  works, 
the  courts  are  disposed  to  permit  greater  freedom  of  action 
on  the  part  of  the  licensee  and  a  more  liberal  construction 
of  the  remedies  open  to  him. 

Misjoinder  must  be  raised  either  by  way  of  motion 
or  by  way  of  defense  in  the  answer.  Failure  by  the  de- 
fendant to  do  so,  will  preclude  him  from  raising  the  ques- 
tion on  appeal.''" 

It  has  been  held  that  an  action  brought  to  restrain  the 
infringement  of  a  patent  may  be  joined  with  one  for 
unfair  competition  where  the  jurisdictional  facts  are  pres- 
ent as  to  the  latter  cause  of  action.''^  We  see  no  reason 
their  operetta  in  America,  so  as  don.  Subsequently  Taylor  sold 
to  cut  off  the  prior  exclusive  the  exclusive  rights  for  the  United 
right  conveyed  to  ( loldiiiark  and  States  for  5  years  to  the  plaintiff, 
(  onroid.  If  tlioy  could  not  cut  Miss  Hatcinan's  husband,  who 
them  off  by  subseciucnt  sale,  wo  brought  the  play  to  this  country, 
do  not  perceive  how  they  could  and  sued  to  enjoin  (l(>fendant 
d(j  it  by  a  subse(|ueiit  dedication  from  infringing.  Held,  that  ])lain- 
to  the  public  by  pul)iication."  tilT  could  maintain  the  action  in 

Crowe  v.  Aiken  (INTO),  2  Biss.      his  own  name. 
(C.  C.)   208.     One  Tom  Taylor  <>»  llislorical  Publ.  Co.  v.  Jonea 

of  London  wrote  a  play  for  Miss      (11)16),  231  Fed.  {C.  C.  A.)  638. 
Hatcman,  a  famous  actress.     TIk;  "  Farmers  IlniuUi  Wagon  Co.  v. 

j)lay  was  first  produ(;c(l  in  Lon-      yimctr  (lUlC)),  23()  lu'd.  ((.'.  C.  .\.) 


WHERE   ACTION    MAY    HE    BROUOHT  585 

why  the  saino  slumUl  not  liold  true  when  the  infringe- 
ment of  a  copyrij^ht  is  involved  instead  of  that  of  a  patent. 

An  instance  where  such  a  situation  may  arise  is  when 
not  only  the  l:)ody  of  the  work  is  appropriated,  but  the 
title  as  well.  Since  the  copyright  covering  the  work  does 
not  extend  to  the  title,  the  proprietor  is  not  entitled  to 
enjoin  the  use  of  the  title  in  his  infringement  suit  unless 
he  sets  forth  another  cause  of  action  based  upon  the  unfair 
use  of  the  title. 

A  complaint  containing  a  count  in  infringement  and 
another  in  trespass  has  been  held  to  be  demurrable." 

Section  162. — Where  action  may  be  brought. 

Under  Section  thirty-four  of  the  Copyright  Act,  all 
actions,  suits  or  proceedings  arising  under  the  copyright 
law  "shall  be  originally  cognizable  by  the  Circuit  Courts 
of  the  United  States,  the  District  Court  of  any  territory, 
the  Supreme  Court  of  the  District  of  Columbia,  the  Dis- 

7:U.     "Tlic  bill  seeks  to  restrain  See  also:   Mchuloo  v.  Miisson 

infringement  of  the  patent  and  Book  Co.    (Can.)    (1915),  3')  O. 

also  to  restrain  unfair  oomijeti-  L.  R.  42. 

tion.     These  are  properly  joined,  '•"  Ohman  v.  City  of  \ew  York 

indeiKMident    (.f   tlie   (juestion   of  (1909),    1G8    Fed.    (C.    C.)    953. 

citizenship.       Adams    v.     Folgcr  Defendant  was  sued  for  haviuR 

(1903),  120  Fed.  (C.  ('.  A.)  2G0;  printed  in  the  City  Record  nm- 

Lwimgs   V.    rnijson    (1913),   2()()  tilated  copies  of  i)laintifT's  maps. 

Fed.  ((■.  C.  A.)  01.  The  causes  of  action  sought  to 

"Appellant  is  entitled  to  have  unite  an  action  for  infringement 

its     patent    sustaincvl,     infringe-  under    the    copyright    laws    with 

ment  thereof  and  unfair  comiM'ti-  an     action     for     trespa.<is.       De- 

tion   found    and    restrained,   and  nuurer  was  su.stained. 
an  accounting  taken." 


586  THE    LAW   OF   MOTION   PICTURES 

trict  Courts  of  Alaska,  Hawaii  or  Porto  Rico  and  the 
courts  of  first  instance  of  the  Philippine  Islands."  And 
such  courts  may  proceed  under  Section  twenty-six  in 
any  action,  suit  or  proceeding  instituted  for  violation  of 
any  provision  of  the  act  to  enter  any  judgment  or  decree 
enforcing  the  remedies  therein  provided. 

As  the  Circuit  Courts  have  been  aboUshed  since  the 
passage  of  the  1909  Act,  all  actions  are  now  originally 
cognizable  by  the  District  Courts. 

The  federal  courts  have  exclusive  jurisdiction  over 
all  actions  arising  under  the  Copyright  Act. 

Where  the  action  is  brought  to  enforce  the  rights  of 
the  proprietor  of  an  unpublished  and  uncopyrighted  work, 
the  state  courts  have  concurrent  jurisdiction  with  the 
federal  courts  to  enforce  the  rights  of  such  proprietor; 
that  is,  the  action  may  in  any  event  be  brought  in  a  state 
Court,  and  where  the  jurisdictional  facts  are  present  it 
may  be  maintained  in  the  federal  courts. ''^^ 

All  civil  actions,  suits,  or  proceedings  may  under  Sec- 
tion thirty-five  be  instituted  in  the  district  of  which  the 
defendant  or  his  agent  resides,  or  in  which  he  may  be 
found.^* 

Section  163. — Who  is  liable— Intent. 
Anyone  infringing  any  of  the  rights  granted  to  the 

"  Palmer  v.  De  Witt  (1872),  47  "  Lederer  v.  Rankin  (1898),  90 

N.  Y.  532;  Tompkins  v.  Ilallcck  Fed.  (C.  C.)  449;  Fraser  v.  linrrei 

(1882),   133  Miiss.  32;  Carter  v.  (1900),    105   Fed.    (C.    C.)    787; 

liailey  (1874),  04  Mc.  458;  Crowe  Lederer  v.  Ferris  (190G),  149  Fed. 

V.  Aiken  (1870),  2  Biss.  (C.  C.)  (C.  C.)   250;   Wagner  v.   Wilson 

208  (1915),  225  Fed.  (I).  C.)  912. 


WHO    IS    IvIABLE — INTENT 


587 


rop^Tight  proprietor  of  a  motion  picture  renders  liiinself 
liaMc  to  iiu  action  under  the  Act. 

Thus  one  offering  the  infringing  work  for  sale  for  the 
purpose  of  exliihition,  though  not  himself  exhibiting  the 
same,  has  l)een  held  to  be  an  infringer. ^^ 

And  the  lessor  of  a  theatre  who  lets  his  theatre  to  one 
whose  exhibition  is  an  infringement,  is  hable,  where  he 
has  knowledge  of  the  infringing  performance  and  does 
not  make  any  attempt  to  stop  it.^*^ 


»  A'a/em  v.  Harper  (1911),  222 
U.  S.  55;  32  Sup.  Ct.  20.  The 
court  Rive.s  the  following  ca.se.s  in 
support  of  this  proposition:  Ritpp 
A  Wittgenfekl  v.  Elliot  (1904),  131 
Fed.  (('.  C.  A.)  730,  732;  Harper 
V.  Shoppell  (188G),  28  Fed.  (C.  C.) 
613;  Morgan  Envelope  Co.  v. 
Albany  Paper  Co.  (1894),  152 
IT.  S.  425;  14  Sup.  Ct.  627. 

Daly  V.  Fainter  (18G8),  6 
Blatch.  (I).  (".)  25().  Where  one 
of  the  defendants  had  not  pro- 
duced the  infrinpiinK  play  but  had 
merely  .sold  it  to  another  who 
himself  produced  it,  the  defend- 
ant was  held  liable. 

Fenning  Film  Service  v.  Wolver- 
hampton  and  Dixlricl  Cinemas 
(Kng.)  (1914),  Law  Times,  .June 
20.  Held  that  under  CoiJvri^ht 
Act  of  1911  one  who  announced 
by  posters  and  handbills  that  he 
woidd  exhibit  a  motion  picture, 
had    authorized    a    i)erformance 


and  was  guilty  of  infringement 
although  lie  never  in  fact  exhib- 
ited the  motion  picture. 

^  Marsh  v.  Conquest  (Eng.) 
(1864),  17  C.  B.  (X.  S.)  418. 
Where  the  company  of  players 
and  the  stage  manager  was  in  the 
proj)rietor's  employ  he  was  held 
liable. 

Wall  V.  Taylor  (Eng.)  (188^3),  11 
Q.  H.  D.  102;  52  L.  J.  Q.  B.  558; 
31  W.  R.  712.  Suit  for  j)enalties 
for  infringement  of  performing 
rights  of  a  song  by  defendant  who 
gave  the  same  in  his  hall  where 
admission  was  by  i-efreshment 
ticket,  i)rice  Sd.  Held  that  plain- 
tiff wius  entitled  t«  recover. 

Monahan  v.  Taylor  (Eng.) 
(1S86),  2  T.  L.  H.  685;  Sarpy  v. 
Hnlland  (Eng.)  (1908),  L.  R.  2 
CMi.  198;  77  L.  J.  Ch.  6.37;  99  L.  T. 
317;  24  T.  L.  R.  600;  Fire  De- 
partment V.  /////  (1891),  14  N.  Y. 
Supp.  158. 


58S 


IHE    LAW   OF   MOTION    PICTURES 


The  courts  have  even  gone  so  far  as  to  hold  that  it  is 
not  necessary  for  the  defendant  to  know  that  the  per- 
formance is  unlawful,  where  he  has  rented  his  theatre 
and  derived  profit  thereby."  This  position  was  taken  by 
Lord  Coleridge  on  the  ground  that  if  it  were  necessary 
to  prove  knowledge  in  the  defendant,  it  would  be  ex- 
tremely difficult  to  protect  the  copyright. 

In  the  words  of  Lord  Justice  Bowen : 

''It  is  not  unreasonable  to  require  that  the  person  who 
lets  his  premises  for  a  concert  should  make  inquiries  as 
to  the  copyright  of  the  pieces  performed."  ^^ 

Defendants,  producers  of  motion  pictures,  had  invited 
the  pubhc  to  view  the  fihns  for  the  purpose  of  selUng  them. 
It  was  held  that  such  an  exhibition  was  not  a  "perform- 
ance" of  the  same  within  the  meaning  of  the  Enghsh 


But  see:  Russell  v.  Briant 
(Eng.)  (1849),  8  C.  B.  836.  Where 
the  proprietor  of  the  theatre  did 
not  authorize  the  performance, 
had  no  management  in  the  pro- 
duction and  was  not  associated 
in  business  with  the  one  control- 
Hng  the  performance,  he  was  held 
not  hable  for  infringement. 

And  see:  Moid  v.  The  Coronet 
Theatre, Lid.  (Eng.) (100.3), Times, 
Feb.  4.  Action  for  infringement 
of  performing  riglits  in  musical 
selection  against  proijrictor  of 
theatre.  Hehl  that  defendant 
was  not  liable  since  aclvxd  knowl- 
edge of  the  infringomont  on  his 
part  had  not  been  established. 


"  Monahan  v.  Taylor  (Eng.) 
(1886),  2  T.  L.  R.  685;  Marsh  v. 
Conquest  (Eng.)  (1864),  17  C.  B. 
(N.  S.)  41S;  French  v.  Day  (Eng.) 
(1893),  9  L.  T.  R.  548. 

^  Monahan  v.  Taylor  (Eng.) 
(1886),  2  T.  L.  R.  685.  In  this 
connection  it  is  interesting  to 
note  that  where  an  employer  ex- 
pressly directs  his  servants  not 
to  violate  the  law  he  is  neverthe- 
less bound  by  tlie  unlawful  acts 
of  the  servant,  so  far  as  violating 
the  ordinances  of  the  city  are 
concerned.  Matter  of  Hammer- 
slevn  (1907),  52  Misc.  (N.  Y.) 
608;  102  N.  Y.  Sui)p.  950. 


WHO    IS    LIABLE — INlTiNT 


589 


Ai't  in  force  at  the  time,  and  did  not  render  defendants 
liable  for  infringement.^^ 

Where,  under  the  English  Act,  the  sole  claim  was  that 
the  infringement  was  of  the  exclusive  performing  rights, 
the  manufacturer  was  not  a  joint  tort  feasor/"" 

In  an  earlier  American  case  the  manufacturer  of  the 
electrotype  plates  from  which  the  infringing  copies  were 
made,  was  held  not  liable,  in  the  absence  of  guilty  knowl- 
edge or  intent/^  This  does  not  seem  to  be  altogether  the 
true  rule  at  the  present  time. 

The  attitude  of  the  courts  to-day  is  to  hold  ever>^one 
liable  who  in  any  manner  has  helped  to  create  the  in- 


"*  Glenville  v.  Selig  Polyscope  Co. 
(Eng.)  (1011),  27  L.  T.  R.  554. 
Defeiulants,  who  were  producers 
of  motion  pictures,  fitted  up  a 
room  at  tlieir  place  of  business 
and  issued  advertisements  to 
the  public  to  see  films  showing 
certain  scenes  of  a  play  which 
plaintiffs  alleged  to  infringe  their 
rights. 

Held,  witliout  deciding  on  tlie 
infringcmont,  that  such  a  room 
was  not  a  i)lace  "of  dramatic 
entertainment"  within  meaning 
of  Section  2  of  the  Dramatic 
Copyright  Act,  IKili,  inasmucli 
as  tlie  |)ublic  were  merely  in- 
vited with  the  object  of  getting 
them  to  purchase  the  films. 

«"  Karno  v.  Paihc  Frnrs  (I^iig.) 
(1908),  100  L.  T.  260;  53  S.  J.  22i>; 


25  T.  L.  R.  242.  Defendants 
maimfactured  films  whidi  repro- 
duced plaintiff's  music  hall  sketch 
as  "living  pictures."  Held,  as- 
suming the  plaintiff's  sketch  to  be 
a  "dramatic  piece"  or  entertain- 
ment within  tlie  meaning  of  §  1 
of  the  Dramatic  Copyright  Act 
of  18^33  the  defendants  did  not 
"cause  to  be  presented"  the 
plaintiff's  sketch  within  the  mean- 
ing of  §  2  of  the  Act. 

«' //«r/;cT    V.    Shop  pell    (1SS6), 

26  Fed.  (C.  C.)  519  (1886), 
28  Fed.  (C.  C.)  613.  "The  law 
will  not  assume  without  evidence 
or  simply  upon  jm)of  that  the 
defendant  sold  the  plate  to  the 
proprietors  of  a  newspaper,  that 
he  inteiuU'd  to  authorize  a  viola- 
tion of  the  plaintiff's  rights." 


590 


THE    LAW   OF   MOTION    PICTURES 


fringing  work.^-  Thus,  it  would  seem  that  the  manufac- 
turer of  a  film,  its  releasor  or  distributor  and  its  exhibitor, 
would  all  be  liable  whether  they  had  acted  innocently 
or  otherwise,  and  this  liability  exists  even  where  the  in- 
fringing acts  were  committed  by  an  employe.*'^  On  the 
other  hand,  it  has  been  held  that  an  employe  is  not  liable 
for  an  infringing  act  of  his  employer,  where  the  act  is 
done  without  his  knowledge  and  contrary  to  his  express 
instructions,  he  being  an  officer  of  the  defendant.^^ 


^^Belford  v.  Sciibner  (1892), 
144  U.  S.  488;  12  Sup.  Ct.  734; 
Gross  V.  Van  Dyke  (1916),  230 
Fed.  (C.  C.  A.)  412. 

See  also:  Stevens  v.  Gladding 
(1854),  17  How.  447. 

65  Trow  Directory  v.  Boyd 
(1899),97Fed.  (C.C.)586. 

See  also:  West  Pub.  Co.  v. 
Lawjers  Co-op.  (1897),  79  Fed. 
(C.  C.  A.)  756. 

Schumacher  v.  Schwencke 
(1887),  30  Fed.  (C.  C.)  690; 
re-affirming,  on  final  hearing, 
(1885),  25  Fed.  ((!.  C.)  466.  "It 
is  clear  that  the  defcMidatits  are 
wrongdoers.  They  have;  invad(!d 
the  complainant's  territory. 
They  have  copied  (he  painting. 
It  i.s  immaterial  how  this  was  ac- 
complished, whether  dinM;tly  or 
indirectly.   .  .  ." 

Gilmorc  v.  Anderson  (1889), 
38  Fed.  ((\  ('.)  846.  "Some  of 
the  material  from  Gilm(jre's  book 


so  used  by  Alger  (defendant) 
had  previously  been  used  by 
others,  without  right,  and  was 
taken  by  him  from  their  works. 
.  .  .  These  acts  of  others  would 
not  however  remove  the  protec- 
tion of  the  copyright,  nor  furnish 
any  excuse  for  him." 

Although  all  those  who  had 
helped  to  create  the  infringing 
work  arc  liable  as  infringers  the 
courts  will  not  recjuire  those  who 
did  not  share  in  the  profits  to 
account  for  the  same.  They  will, 
however,  be  enjoined  and  re- 
(juired  to  i)ay  complainant's  dam- 
ages, (iross  V.  \'tni  Dyk  Grarure 
Co.  (1910),  230  Fed.  (C.  C.  A.) 
412. 

^*  Stuart  V.  Smith  (lS9r)).  OS 
Fed.  (C.  C.)  189. 

See  also:  French  v.  Grajory 
(Fng.)  (1893),  9  T.  L.  R.  548. 
The  miiiiMgcr  of  tlic  tiieatn"  was 
held    not    lial)lc,    the    proprietor 


WHO    IS    I.IABLK — INTENT 


rm 


Knowledge  is  at  best  a  diilicuU  matter  t<j  estaljli^h  in  a 
court  of  law;  it  is  doubly  so  in  an  infringement  case.  For 
that  reason  knowledge  or  intent  has  been  held  to  l^e  im- 
material."'' It  must  be  undcM'stood  that  this  rule  does  not 
apply  to  the  criminal  section  of  the  Act,  where  it  is  specif- 
ically provided  that  the  infringer  must  have  knowingly 
and  wilfully  aided  in  the  commi.ssion  of  the  Act.  Nor 
did  it  ai)ply  to  the  penalty  sections  of  former  statutes.^ 


alone  being  resiwnsible  for  the 
infringing    iwrfonnance. 

Sec  in  tliis  connection:  Howell  v. 
i»/i7/cT  (1808),  91  Fed.  (C.  C.  A.) 
129.  Where  officers  of  a  state 
prepare  a  work  which  is  the  prop- 
erty of  the  state,  and  the  work 
infringes  uix)n  the  copyriglit  of 
another  work,  the  copyright  pro- 
prietor of  the  latter  work  may 
maintain  an  action  for  infringe- 
ment. 

^^  Fisher  v.  Lucckel  (1892), 
53  Fed.  (C.  C.)  499.  "When  the 
infringement  is  otherwise  estai> 
lishcd,  the  intention  is  immaterial. 
Reed  v.  IlollUlmj,  19  Fed.  32.^)." 

"  The  evidenil"  shows  that  the 
defendants  bought  the  pictures 
from  complainants,  furnishwl 
them  to  the  photogravure  com- 
pany, ordered  the  copies  made, 
and  gave  general  directions  as 
to  how  the  work  should  be  done. 
The  tlefendants  j)rocured  the  in- 
fringing act    to   be  done.     They 


are  therefore  liable  as  joint  Uivi 
feasors.  Esles  v.  Worlhiiiglon 
(1887),  30  Fed.  (C.  C.)  465;  Rob. 
Pat.,  Sec.  910." 

Wcalhcrby  &  Soius  v.  IrUeni'l 
Horse  Agency  (Fng.)  (1910), 
2  Ch.  297;  79  L.  J.  Ch.  609;  102 
L.  T.  850;  26  T.  L.  R.  527;  Carl- 
ton niustralors  v.  Coleman  (Eng.) 
(1910),  27  T.  L.  R.  05;  Smith  v. 
Daily  News,  Ltd.,  (Eng.)  (1910), 
Times,  Dec.  2. 

Where  the  inanuscript  has  been 
submitted  to  the  infringer,  that 
fact  may  be  taken  into  considera- 
tion. Maxwell  v.  Goodwin  (1899), 
93  Fed.  (C.  C.)  665;  Bird  v. 
Thanhamer  (1911),  lt)0  111.  App. 
653;  Fraser  v.  Edwardes  (Eng.) 
(1905),  Times,  March  23,  24,  25, 
28,  29,30. 

*«  Taylor,  Jr.,  v.  Gilman  (1885), 
24  Fed.  (C.  C.)  ^32;  .McDonald 
V.  Hearst  (1899),  95  Fed.  (D.  C.) 
656;  Schrciber  v.  Sharpless  (1881), 
6  Fed.  (D.  C.)  175. 


592 


THE    LAW   OF   MOTION    PICTURES 


This  present  trend  is  illustrated  in  Haas  v.  Feist,^'^ 
where,  notwithstanding  the  innocence  of  one  of  the  de- 
fendants, the  court  decreed  on  account  of  profits  and 
damages  as  against  him,  for  the  Copyright  Act  'imposes 
upon  everyone  the  duty  to  learn  the  facts  conveyed  by 
the  notice." 

An  author  may  be  guilty  of  infringement  of  his  own 
work.^^ 

When  a  work,  including  the  copyright  therein,  is  sold, 
the  vendor  is  liable  for  any  infringement  of  such  work  by 
himself  and  he  will  not  be  permitted  in  an  action  for  such 
infringement  to  maintain  the  defense  that  the  work  is 
not  copyrightable.^^ 


"Haas  V.  Feist  (1916),  234 
Fed.  (D.  C.)  105. 

«8  George  T.  Birel  Co.  v.  Welsh 
(1904),  131  Fed.  (C.  C.)  564. 

^^Lavin  v.  Birch  (Eng.)  (1903), 
Times,  Apr.  4;  Ilardacre  v.  Arm- 
strong (Eng.)  (1904),  Times,  Oct. 
27. 

See  generally  the  line  of  cases  to 
the  effect  thai  a  licensee  under  a 
patent  inll  not  be  permitted  to 
question  his  licensor's  title  in  an 
action  for  royalties:  Nilhon  v. 
l)c  Haven  (1900),  47  A.  D.  (N.  Y.) 
537,  62  N.  Y.  Supp.  506;  Saltus 
V.  Hrdford  Co.  (1S92),  133  N.  Y. 
199;  33  N.  E.  51H;  Baylies  v. 
Bullock  (m)0),  32  Misc.  (N.  Y.) 
21H;  66  N.  Y.  Supp.  253;  reversed 
on  other  grounds  (1901),  59  A.  D. 


(N.  Y.)  576;  69  N.  Y.  Supp.  693; 
Marston  v.  Swett  (1876),  66  N.  Y. 
206;  Sizer  v.  Ray  (1881),  S7  N.  Y. 
220;  Maitland  v.  Company  (18<)4), 
7  Misc.  (N.  Y.)  408;  21  N.  Y. 
Supp.  965;  Montgomery  v.  Water- 
bury  (1893),  2  Misc.  (N.  Y.)  145; 
21  N.  Y.  Supp.  631 ;  aff'd  142  N.  Y. 
652;  37  N.  E.  569;  O'Brien  v. 
Jones  (1883),  91  N.  Y.  192;  Mc- 
C.iffen  V.  Baird  (1875),  62  N.  Y. 
329;  Akin  v.  Meeker  (1894),  78 
Hun,  387;  29  N.  Y.  Supp.  132; 
afT'd  149  N.  Y.  610;  44  N.  E. 
1120. 

And  ius  to  !i  play  see:  Hart  v. 
Fox  (1917),  N.  Y.  Law  .lournal, 
August  24;  Outcaull  v.  Bonheur 
(1907),  120  A.  D.  (N.  Y.)  168; 
104  N.  Y.  Supp.  1099. 


WHAT    MUST    HE    AI.LK(;KI)    AND    PkOVKI) 


i'.ia 


A  licensor  who  oversteps  the  prant  of  his  Hcense  is  as 
much  an  infringer  as  a  stranger.""  To  illustrate,  a  [)arty 
who  is  pjiven  the  exclusive  right  to  exhibit  a  film  for  a 
limited  time  within  a  specified  territory,  is  guilty  of  in- 
fringement if  he  exhibits  the  film  or  causes  it  to  be  ex- 
hibited in  other  territory. 

Section  164. — What  must  be  alleged  and  proved. 

As  the  action  for  infringement  is  purely  statutory,  the 
complaint  must  allege  every  fact  necessary  to  show  that 
complainant  is  entitled  to  maintain  his  action  under  the 
Act.'i 


'''Duck  V.  Mayer  (Eng.)  (1892), 
8  T.  L.  R.  339.  Where  defend- 
ant liad  overstepped  the  grant 
of  her  Hcense  in  producing  a  play, 
held  hable  for  infringement. 

See  also  Section  75. 

"iSadte  V.  Lederer  (1909),  174 
Fed.  (C.  C.  A.)  135;  Dc  Jongc  v. 
Brenker  &  Kcsulcr  (1911),  191 
Fed.  (C.  C.  A.)  35;  Lederer  v. 
Saake  (1909),  166  Fed.  (C.  C.) 
810;  Freeman  v.  Trcute  Reg.  (1!K)9), 
173  Fed.  (C;.  C.)  419;  Mcrriam 
V.  United  Dictionary  (1!)05),  140 
Fed.  (C.  C.)  768;  Merrill  v.  Tice 
(1881),  104  U.  S.  557;  Osgood  v. 
Aloe  Inalrxunent  Co.  (1897),  83 
Fed.  ((\  C.)  470;  Jonea  v.  Van 
Zandl  (1846),  5  How.  372;  Pierce 
V.  Werckmeister  (1896),  72  Fed. 
(C.  C.  A.)  54;  Boiicicaidl  v.  Hart 
(1875),   13  Blutch.    (C.   C.)   47; 


Empire  City  v.  Wilton  (1903), 
134  Fed.  (C.  C.)  132;  Banks  v. 
Manchester  (1888),  128  U.  S. 
244;  9  Sup.  Ct.  36;  Trow  CUy 
Directory  v.  Curlin  (1888), 36  Fed. 
(C.  C.)  829. 

Chicago  Mus.  Co.  v.  BiUler 
(1884),  19  Fed.  (C.  C.)  7.58.  In 
an  action  for  tlie  infringement  of  a 
copyright  the  complaint  must 
set  forth  the  various  steps  by 
which  complainant  accjuircd  that 
right. 

"  The  i)laiiititT  must  show  that 
he  ha.s  taken  the  stcf)s  required 
by  law." 

This  rule  differs  from  the  rule 
in  patent  c:uses  because  there  is  a 
presumption  in  patentii,  from  the 
issuance  of  the  letters  patent,  the 
examination  before  the  commis- 
sioner and  so  on.    No  procedure 


594 


THE    LAW    OF   MOTION    PICTURES 


The  complaint  must  specifically  allege  the  necessary 
steps  taken  to  secure  copyright,  otherwise  the  bill  is 
demurrable.'^^    As  the  rule  has  been  expressed: 


is  necessary  to  be  gone  through 
in  copyright  other  than  the 
formal  deposit,  and  under  the 
old  Act,  the  fiUng  of  the  title. 

Bosselmwi  v.  Richardson  (1909), 
174  Fed.  (C.  C.  A.)  622.  "Such 
a  certificate  (a  copyright  certif- 
icate) is  wholly  unlike  letters 
patent,  which  are  issued  under 
§  4S84  after  a  quasi  judicial  ex- 
amination of  the  applicant's 
rights,  and  which  grant  him,  his 
heirs,  or  assigns,  the  exclusive 
right  to  make,  use  and  vend  the 
invention  patented.  A  patentee 
accordingly  makes  a  prima  facie 
case  when  he  puts  his  letters  in 
evidence  and  proves  infringe- 
n)cnt.  The  owner  of  a  copyright, 
on  (he  oilier  hand,  is  bound  to 
prove  compliance  with  all  the 
tildiidori/  conditions,  viz.:  in  this 
case  that  his  iussignor  was  the 
author  and  that  ncitlicr  i»c  nor 
his  assignor  had  ptihlished  the 
j)airiting  before  cojjyright.  8  Pet. 
r)!);i,  009;  104  U.  S.  557,  96  Pet. 
21.'i.  The  certificate  of  the  JAbra~ 
rian  of  Congress  is  no  proof  of 
compliance  with  these  conditions^ 

S(!C  also:  Patterson  v.  Ogilvie 
Pub.  Co.  (1902),  119  Fed.  (C.  C.) 


451.  Where  the  certificate  de- 
scribed the  author  as  "of  New 
York"  and  the  author  testified 
that  he  was  a  resident  of  New 
York  and  that  he  mailed  the 
copies  of  the  work  from  that 
locality.  Held  sufficient  evidence 
showing  that  author  was  a  citizen 
of  the  United  States. 

See  also:  Webb  v.  Powers  (1847), 
Fed.  Cas.  17323  (C.  C).  An 
allegation  of  citizen  in  a  bill  of 
complaint,  not  denied  by  the 
answer  is  sufficient,  and  no  other 
evidence  on  that  point  is  neces- 
sary. 

See  generally  on  demurrer  or 
motion  to  dismiss  bill  of  complaint: 
Crown  Feature  Film  v.  Belts 
(1913),  206  Fed.  (D.  C.)  362; 
Henderson  v.  Tompkins  (1894,) 
60  Fed.  (C.  C.)  758;  Bo^icicavll 
V.  Hart  (1875),  Fed.  Cas.  1692 
(C.  C);  Alwill  V.  Ferrell  (1846), 
Fed.  Cas.  040  (C.  C),  Farnu:r  v. 
Calvert  (1872),  Fed.  Cas.  4651 
(C.  C);  Trow  City  Directory  v. 
Curtin  (1888),  36  Fed.  (C.  C.) 
829. 

^*  Ford  V.  Blaney  Amuse.  Co. 
(1900),  148  Fed.  (C.  C.)  642; 
Hucbsch    V.    Christ    (1914),    209 


WHAT    MUST    J<i:    AI.l.KCKI)    AND    PROVED 


595 


"All  author  suing  for  infriiigeineiit  <jf  a  copyright  lias 
the  burden  of  showing  a  htcral  compUance  with  each 
and  every  statutory  requirement  in  the  nature  of  condi- 
tion precedent  to  tlie  a('(iuisition  of  a  vahd  copyright.""^ 

And  to  the  same  effect : 

"The  bill  must  show  strict  compliance  with  the  require- 
ments of  the  copyright  law,  and  if  a  failure  so  to  do  ap- 
pears on  the  face  of  the  bill,  then  the  bill  fails  to  state  a 
cause  of  action  under  the  statute."  ' ' 

In  numerous  actions  which  were  brought  for  infringe- 
ment, complainants  were  non-suited  because  of  their 
failure  to  allege  or  estabhsh  compliance  with  all  the  pro- 
visions of  the  statute. 


Fed.  (D.  C.)  885.  Even  when; 
ther(!  is  no  denial  of  pluititifT'.s 
copyright  he  i.s  lx)und  to  prove 
the  same. 

^^  Osgood  V.  Aluc  Iit.'it.  Co. 
(1897),83Fed.  (C.  0  470. 

"  Crown  Feature  Co.  v.  Levy 
(1<)I2),  202  Fed.  (D.  C.)  805. 
"Complainant  states  merely  that 
its  assignor  was  'the  sole  and  ex- 
clusive owner  and  proprietor  of 
certain  photographs  entitled  St. 
George  and  the  Dragon,  Part  I, 
.  .  .  and  of  all  rights  and  privi- 
leges tlKTeiinder  and  therein  in 
and  to  the  llnited  States  and  the 
territories  tliereof.'  There  is  no 
allegation  that  Powei-s  was  the 
author  or  that  there  was  any 
author  or  producer  in  the  United 
States  or  elsewhere,  or  how,  if 


Powers  was  not  the  author,  he 
became  the  proprietor.  I  think 
under  the  present  act  even  more 
strongly  than  heretofore,  com- 
plainant must  show  his  title  not 
merely  by  an  allegation  that  he  is 
the  proprietor,  but  b}'  setting 
forth  facts  which  show  how  he 
became  proprietor,  and  why  he 
ha.s  the  right  to  bring  the  action. 
Wliile  Bosselman  v.  Richardson, 
17-1  Fed.  622,  and  Ford  v.  Blaney 
Amusement  Co.,  148  Fed.  642, 
arose  under  the  previous  law, 
yet  they  are  in  princijile  appli- 
cable to  the  case  here  under  con- 
sideration." 

Sec  also:  Freeman  v.  The  Trade 
Register  (1909),  173  Fed.  (C.  C.) 
419.  Copyright  statute  must  be 
strictly  complied  with. 


o96  THE    LAW   OF   MOTION   PICTURES 

Where  the  complaint  alleged  that  ''two  complete 
copies  of  said  photographs"  had  been  deposited,  the  alle- 
gation was  held  not  to  satisfy  the  requirement  of  the 
statute  which  provides  for  the  deposit  of  ''two  complete 
copies  of  the  best  edition  thereof  then  pubhshed."  "^  In 
the  same  case  the  court  expressed  the  view  that  the  bill 
was  demurrable  because  as  the  court  said:  "There  is 
nothing  to  show  that  the  photograph  is  a  copyrightable 
work," 

Where  the  action  is  brought  by  the  proprietor  of  a 
copyright  who  is  not  himself  the  author,  it  is  incumbent 
upon  him  to  allege  the  manner  m  which  he  acquired 
title.'^ 

It  is  interesting  to  note  that  in  an  action  brought  in  the 
state  court  for  infringement  of  an  unpublished  operetta, 
it  was  held  on  demurrer  that  it  was  sufficient  to  allege 
that  the  plaintiff  "duly  acquired  and  became  exclusive 
owners"  of  the  work,  and  the  the  court  would  not  treat 
such  an  allegation  as  a  conclusion  of  law.'^ 

'■■Croum  Feature  Co.   v.   Levy  Co.  (Eng.)  (1888),  40  CIi.  Div. 

(H)I2),202Fed.  (D.  C.)805.  345;   Moore   v.  Rugg    (1890),  4G 

~'^'  Burrow-CJilcs  Lithographic  Co.  N.  W.    (Minn.)  141;  Diclman  v. 

V.  Sarony  (1884),  111  U.  S.  53,  4  White   (1900),  102  Fed.  (C.  C.) 

Sup.  Ct.  279;  Nottage  v.  Jackson  892;   Parton  v.  Prang  (1872),  3 

(Eng.)(1883),llQ.  B.  D.G27;/l^  ClilTord   (C.    C),   537;   Little  v. 

well  V.  Fcrrell  (1S40),  2  Bhitclif.  Good   (1S51),  2  lihitclif.  {C.  C.) 

(C.  C.)  39;  Bimms  v.  Woodworlh,  1()5;  Ilardacre  v.  Armstrong  (Eng.) 

4  Wa.sh.  C.  C.  Rep.  48;  Black  v.  (1904),  Times,  Oct.  27. 

^«cft  Co.  (1890),  42  Fed.  (C.  C.)  "  7Wj.s    v.     Wilmnrk     (1900), 

618;   S.   C.  56,    Fed.  761;   Press  30  Misc.   (N.  Y.)  2i)3;  63  N.  Y. 

PM.  Co.  V.  Valk  (1S94),  59  Fed.  Siipp.  721 ;  jilT'd  48  A.  1).  (X.  Y.) 

(C.  C.)  324;  Pollard  v.  Photograph  632;  63  N.  Y.  Supp.  1117. 


WHAT   MUST    HE    ALLEGED    AM)    PR0\T5D 


597 


The  fomplaiiiant  is  always  under  the  ohligation  of 
establishing  the  authorship  of  the  work."^ 

Under  Section  twelve  of  the  Act  no  action  or  pro- 
ceeding may  l^e  maintained  for  infringement  of  co])yright 
unless  the  provisions  of  the  Act  with  respect  to  the  de- 
posit of  copies  and  registration  of  the  work  have  been 
complied  with.  Hence,  where  the  complaint  does  not 
all(>ge  the  dejiosit  of  copies  and  registration  of  the  work, 
the  l)ill  is  denmrrable."^ 


■>*BulUnger  v.  Mackcy  (1879), 
15  IMatch.  (C.  C.)  550;  Fed.  Cas. 
2,127,  p.  G51.  "I  next  notice 
the  point  made,  that  the  plaintiff 
has  not  produced  proper  evidence 
to  show  himself  the  author  or 
proprietor  of  his  works,  within 
the  meaning  of  the  copyright 
laws.  The  argument  here  is, 
that  no  one  but  the  plaintiff 
himself  can  IcRally  establish  the 
fact  that  the  plan,  arrangement, 
and  combination  of  his  works 
originated  in  his  brain.  But, 
then;  is  evidence  showing  that  the 
j)laiiitilT,  by  his  own  labor  and 
that  of  persons  employed  by  him, 
and  working  under  his  direction, 
gathered  together  from  various 
original  sources  the  material  of 
his  book;  that  the  manuscript 
in  which  the  matter  was  arranged 
wa.s  partly  in  his  handwriting; 
and  that  from  the  manuscript 
the  work  was  printed  for  him  at 


his  expense.  It  was  not  neces.«!ary 
that  the.se  acts  of  the  plain- 
tiff should  be  proved  by  the  testi- 
mony of  the  i)laintilf.  The  testi- 
mony of  any  person  who  saw  them 
done  is  primary  and  direct  e\'i- 
dence  of  their  having  been  done, 
and,  ii\  the  absence  of  any  testi- 
mony to  tiie  contrar>',  estab- 
lished the  fact  that  the  plaintiff 
gathered  together  information 
conveyed  by  his  book,  arranged 
that  information  as  it  apjxiars 
in  the  book,  and  caused  it  to  be 
printed  in  that  form.  The  acts 
of  the  plaintiff  thus  proved  to 
have  IxH'u  ilone  in  preparing 
his  work  are  those  of  a  compiler. 
A  compiler  is  an  author,  within 
the  meaning  of  the  constitution 
and  the  copyright  laws.  .  .  ." 

But  .see  in  this  connection: 
Reed  v.  Canisi  (1845),  20  Fed. 
Cas.  No.  11,(>42  (C.  C). 

■»A'.    }'.    Times    v.    Star    Co. 


598 


THE    LAW   OF   MOTION    PICTURES 


After  the  obtaining  of  a  temporary  restraining  order, 
it  appearing  that  two  copies  of  the  work  had  not  been 
deposited  in  the  copyright  ofhce  or  in  the  mail  addressed 
to  the  Register  of  Copyrights,  the  coiu-t  held  that  it  had 
no  jurisdiction  to  maintain  the  action.^'^ 

The  Certificate  of  Copyright  Registration  is  prima 
facie  evidence  of  the  facts  stated  therein  under  Section 
fifty-five  of  the  Act,  and  has  been  so  held  by  the  courts.^^ 

The  proper  method  of  proving   the  exhibition  of  a 


(1912),  195  Fed.  (C.  C.)  110; 
N.  Y.  Times  Co.  v.  Sun  Print- 
ing &  Pub.  Ass'n  (1913),  204 
Fed.  (C.  C.  A.)  586;  Davies  v. 
Bowes  (1914),  219  Fed.  (C.  C.  A.) 
178. 

Caliga  v.  Interocean  Newsp. 
Co.  (1907),  157  Fed.  (C.  C.  A.) 
186.  But,  on  the  other  hand, 
where  complainant  had  registered 
her  paiiiting  twice  she  lost  all 
copyright  therein.  It  follows 
that  it  is  just  as  dangerous  to  do 
too  much  as  too  little  in  the  regis- 
tration for  copyright. 

»"iV.  Y.  Times  Co.  V.  Star  Co. 
(1912),  195  Fed.  (C  C.)  110. 
Where  complainant  had  obtained 
a  restraining  r)r(ler  on  March  8th, 
hut  had  not  mailed  two  copies 
of  the  work  to  W;ushington, 
hcUl  that  tlic  court  liad  no  juris- 
diction to  rnaiiilain  the  action, 
as  such  deposit  is  a  condition 
precedent. 


81  Chatauqica  School  v.  NaVl 
^School  (1914),  211  Fed.  (D.  C.) 
1014;  reversed  in  (1916),  238 
Fed.  (C.  C.  A.)  151,  on  the  ques- 
tion that  a  compilation  of  methods 
for  giving  hypodermic  injections 
did  not  disclose  originality. 

Ilmbsch  V.  Christ  (1914),  209 
Fed.  (D.  C.)  885.  It  would  seem 
that  a  certificate  of  the  copyright 
office  showing  deposit  of  two 
copies  of  the  work  is  competent 
evidence  of  such  deposit. 

See  also  in  this  connection: 
Merrell  v.  Tire  (1881),  104  U.  S. 
557;  Saakr  v.  Lcderer  (1909), 
174  Fed.  (C.  C.  A.)  135;  lirifonl 
V.  Scribncr  (1891),  144  U.  S.  488; 
12  Sup.  ('t.  734;  Callaghan  v. 
Myers  (1888),  128  U.  S.  617;  9 
Sup.  Ct.  177;  liosscbuan  v.  Rich- 
anhon  (1909),  171  Fed.  {C.  C. 
A.)  622;  Ledcrer  v.  Smikc  (1909), 
1()6  Fed.  (C.  C.)  810. 


nil.L    OF    PARTICULARS  699 

motion  picture  is  not  by  thf  production  of  the  film,  l.ut 
by  a  witness  who  has  seen  it  reproduced.*'- 

Section  165. — Bill  of  particulars. 

The  defenduut  in  un  infriugcnient  suit  is  entitled  to  a 
bill  of  particulars  setting  forth  in  detail  the  specific  parts 
of  complainant's  work,  which  complainant  claims  to  be 
infringed.^'' 

Equity  rule  twenty  expressly  gives  this  right:  "A  fur- 
ther and  better  statement  of  the  nature  of  the  claim  or 
defense  or  further  and  better  particulars  of  any  matter 
stated  in  any  pleading  may  in  any  case  be  ordered  upon 
such  terms  as  to  costs  and  otherwise  as  may  be  just." 

Where  the  action  is  based  upon  a  number  of  copyrights, 
complainant  will  be  rocjuired,  upon  defendant's  motion, 
to  separately  state  and  number  his  causes  of  action.'*^ 
And  no  affidavit  will  be  required  on  a  motion  to  separately 
state  and  number,  as  that  can  be  determined  from  the 
inspection  of  the  pleadings  ahme.*'" 

"-G/i/M  V.  Western  Feature  Film  Mnxwell  Steel  Vault  Co.  v.  Nat'l 

Co.  (Eng.)  (1910),  1 14  L.  T.  :i-y\,  Casket  Co.  (H)13),  205  Fwl.  (D.  C.) 

32  T.  L.  R.  235.  522;  Muser  v.  Robertson  (1883), 

^*Liddell    v.    Copp-Clarh    Co.  17   Fed.    (C.   C.)   ,500;  Cause  v. 

(Can.),    19   O.    Pr.    :i:i'2.      In   an  Knapp    (1880),    I    Fwl.    (C.    C.) 

action  for  (•<)pvri^;llt  iiifrinKcincnt  2!)2;     Foster'.s     "  Fi'dcral     IVaf- 

di'fcntlant  \v:ux  entitled   to  a  l)ill  tice,"  5th  ed.,  §§240-241. 
of   particulars  .showing  the  date  "*  Dcubert  v.  City  of  Xew  York 

of     registration     of     the     plain-  (1!)0S),   126  .V.   D.   (X.   Y.)  359; 

tifT'.s     eopyriglit,     and     showing  110  N.  ^'.  Sui)p.  -HXi;  Harrington 

what    part,    of    the    tlefendant's  v.    Stillman    (1<K)7),    120    A.    I), 

work   W51S   an    infringement.  (N.   Y.)   059;    105    \.   Y.  Suj)!). 

**  Sec  for  non-copyright  actions:  75. 


600  THE    LAW   OF   MOTION   PICTURES 

The  defendant's  right  to  ask  for  a  more  definite  and 
certain  complaint  was  involved  in  a  patent  case  where  ^^ 
Judge  Chatfield,  in  granting  the  motion  to  the  extent 
of  directing  the  plaintiff  to  make  his  complaint  more 
definite  and  certain,  stated: 

"But,  before  answering,  the  defendant  is  entitled  to  a 
definite  and  certain  complaint,  and  is  entitled  to  know 
that  with  which  it  is  charged,  so  as  to  determine  whether 
the  information  upon  which  its  answer  is  to  be  drawn 
is  within  its  own  possession.  The  plaintiff  has  alleged 
infringement  both  before  and  after  the  letters  patent 
referred  to  were  granted.  The  defendant,  in  its  corre- 
spondence and  affidavits  presented  upon  tliis  motion, 
alleges  the  use  and  sale  of  no  articles  except  those  made 
under  the  Almond  patent.  No.  434,748,  granted  August  19, 
1890,  which  has  already  expired,  and  the  Scognamillo 
patent.  No.  785,523,  issued  March  21,  1905,  and  upon  the 
papers  it  would  seem  that  the  defendant  has  the  right  to 
operate  under  these  patents,  unless  they  are  the  object 
of  attack. 

"The  plaintiff  should  be  required  to  particularize  suffi- 
ciently, so  that  an  issue  can  be  raised,  and  so  that  the 
allegations  of  fact  of  the  complaint  can  be  definitely  made 
out,  for  the  purpose  of  framing  the  issue." 

^*  Fischer  v.  AiUomobile  Supply  Co.  (1912),  199  Fed.  (D.  C.)  191. 


CHAPTER  XIV 

COPYRIGHT    (continued) 

Remedies 

Sec.  IGG.  Actions  in  equity — In  genoml. 
1G7.  Preliminary  injunction. 
168.  Final  hearing. 
1G9.  Injunction  as  to  part. 

170.  Writ  of  .seizure. 

171.  Accounting. 

172.  Actions  at  law. 

17.'i.  Actions  jiurporting  to  he  hrought  under  the  Copyright  Act. 

174.  Willful  infringements. 

17").  Statute  of  limitations. 

17r>.  Construction  of  forfeiture  an<l  jx-nalty  clauses. 

177.  Aj)peal. 

Section  thirty-six  of  the  CopjTight  Act  expressly  pro- 
vides that  the  courts  which  have  jiiris(Hction  over  copy- 
rif^lit  actions  or  the  judges  thereof  shall  have  the  ])o\ver 
ui)on  bill  in  equity  filed  by  any  party  aggrieved  to  grant 
injunctions  to  prevent  and  restrain  the  violation  of  any 
ri^ht  secured  by  tlie  cop^Tight  laws  according  to  the 
course  and  principles  of  the  courts  of  ecjuity,  on  such 
terms  as  said  court  or  judge  may  deem  reasonable. 

This  section  further  provides  that  any  injunction  which 
may  be  granted  restraining  and  enjoining  the  doing  of 
anything  forbidden  by  the  Act,  may  be  served  on  the 

(301 


602  THE    LAW   OF   MOTION   PICTURES 

parties  against  whom  such  injunction  may  be  granted 
anywhere  in  the  United  States,  and  shall  be  operative 
throughout  the  United  States  and  be  enforceable  by 
proceedings  in  contempt  or  otherwise  by  any  other 
court  or  judge  possessing  jurisdiction  of  the  defend- 
ants. 

The  copyright  proprietor,  however,  is  not  confined  to 
a  bill  in  equity  for  his  relief.  He  may  maintain  an  action 
at  law  triable  before  a  court  and  jury,  as  will  be  more 
fully  discussed  hereafter. 

Section  166. — Actions  in  equity — In  general. 

Rule  one  of  the  Supreme  Court  Rules  for  the  practice 
and  procedure  to  be  followed  in  actions  under  Section 
twenty-five  of  the  Act  provides  that  the  existing  rules  of 
equity  practice  so  far  as  they  may  be  applicable,  shall  be 
enforced  in  all  proceedings  instituted  under  that  section 
of  the  Act. 

Section  167. — Preliminary  injunction. 

An  aggric\'ed  party  is  not  required  to  wait  until  there 
is  a  final  dc^termination  before  eciuitable  relief  will  be 
granted  to  him.  Nor  is  he  required  to  wait  until  the  in- 
fringement has  actually  taken  place,  before  filing  his 
hill.  A  threatened  invasion  of  his  rights  is  sufiicient  to 
entitle  complainant  to  injunctive  relief.' 

The  rule  respecting  the  granting  of  injunctions  pendente 
lite  has  l)orn  enforced  more  liberally  in  favor  of  the  plain- 
tiff in  actions  involving  the  infringement  of  literary  prop- 

'  Historical  I'ub.  Co.  v.  Jones  (191G),  2:31  Fed.  (C.  C.  A.)  G3S. 


PRELIMINARY    INJUNCTION  603 

erty  tlian  in  aft  ions  of  anotlicr  nature,  since  the  delay 
involved  in  waiting  for  a  final  decree  would  generally 
amount  to  a  denial  of  justice.- 

Notwithstanding  tliis  l)road  rule,  however,  the  courts 
will  reciuire  that  conii)lainant  before  obtaining  a  tem- 
porary injunction,  establish  a  clear  case.''  And  he  must 
show  affirmatively  "beyond  any  doubt  that  he  has  com- 
plied with  the  copyright  law";  in  other  words,  if  there  is 
any  doubt  as  to  the  validity  of  comjilainant's  coj^yright, 
no  injunction  pendente  lite  will  issue.'' 

Indeed,  where  c()mi)lainant's  cojn'right  is  attacked  the 
court  is  disposed  rather  to  restrict  its  interference  by  in- 
junction, and  in  such  case  it  will  give  great  weight  to  the 
consideration  of  the  questions,  first,  as  to  which  side  is 
more  likely  to  suffer  by  an  erroneous  or  hasty  judgment, 
and  secondly,  as  to  the  prejudicial  effect  the  injunction 
may  have  upon  the  trial  of  the  action.^ 

The  true  rule  may  be  said  to  be  that  where  the  com- 
l)lainant's  coi)yright  is  not  seriously  contested  and  the 
court  is  satisfied  that  there  is  an  infringement,  an  injunc- 
tion will  be  granted  regardless  of  the  consequences  of  the 
same  to  the  defendant.  If,  however,  the  complainant's 
copyright  is  seriously  contested  and  some  doubt  is  raised 

WImppcU  V.  FldiU  (I'.llt),  ;{r)l;  .Vuvm  V.  Do/an  (1909),  16S 
210  Fod.  (C.  ('.  A.)  864;  Xixon  Fed.  (C.  C.)  57o;  Bvnton  v.  Van 
V.  /)m»N  (1909).  ir.S  Fed.  (C.  ('.)       Dukr    (1909).    170    Vcd.    (('.    ('.) 


r)7.). 


'KYA. 


'  Unrpcr    v.     Ilolmau     (1S97),  *  American     Trotting     Rvg.     v. 

<S4  Fed.  (C.  ('.)  221;  Hoffman  v.  CuKher   (1S95),  70   Fed.    (C.   C.) 

LeTraunik  (1913),  209  Fctl.  (D.  2,'i7. 

C.)  'M'y,  Amcrirnn  Malting  Co.  V.  "  MrXrill   v.    WiUiama    (Eng.) 

Kcitd  (1913),  209  Fed.  (C.  C.  A.)  (1847),  II  Jur.  344. 


G04  THE    LAW  OF  MOTION   PICTURES 

as  to  its  validity,  then  the  court  will  consider  before 
issuing  its  mandate  whether  the  defendant  will  suffer 
great  loss.  For  if  it  should  then  turn  out  upon  final  hear- 
ing that  complainant's  copyright  is  invalid,  defendant's 
loss  may  be  of  such  a  character  as  to  be  impossible  of 
computation,  and  a  recovery  on  the  undertaking  given 
on  injunction  would  not  return  the  defendant  to  his  for- 
mer position. 

The  wisdom  of  this  rule  is  readily  apparent  in  a  case 
where  a  motion  picture  has  been  released  for  exhibition, 
and,  shortly  after  its  release,  and  before  it  has  run  its 
course,  an  injunction  issues.  It  may  be,  and  usually  is, 
several  months  before  a  final  hearing  can  be  had.  If 
complainant's  copyright  is  held  to  be  invalid  upon  final 
hearing,  defendant's  injury  cannot  be  compensated  by 
recovery  under  the  undertaking,  for  the  life  of  a  picture 
is  ephemeral.  After  vacating  the  injunction  the  picture 
has  in  all  likelihood  grown  stale,  and  defendant  has  lost 
not  only  his  investment  but  liis  profit  as  well.  He  may, 
under  the  undertaking,  recover  the  cost  of  his  film,  but 
since  future  profits  in  works  of  this  character  are  to  a 
great  extent  speculative,  he  must  suffer  this  loss  without 
redress. 

A  motion  for  a  temporary  injunction  will  not  be  allowed 
to  operate  as  a  means  of  obtaining  a  premature  expression, 
where  unnecessary,  of  the  ojiinion  by  the  court  upon 
the  merits  of  the  controversy.*^ 

Where  the  defendant  denies  that  the  work  annexed  to 
the  })ill  of  complaint  and  alU^ged  to  be  tlie  work  infriiig(»(l 
is  such  in  fact,  ihv  com])lainaMt  must  allinnatively  show 
'^Pott  V.  AUemm  (1894),  GO  Fed.  (C.  C.)  339. 


PRELIMINARY    INJUNCTION  (iO.'j 

that  the  copy  wliicli  he  annexes  is  indeed  a  true  copy  of 
the  work.^ 

And  where  defendant  claimed  that  he  had  an  oral 
license  to  produce  complainant's  work  by  reason  of  the 
fact  that  the  complainant  was  aware  of  the  preparations 
which  the  defendant  was  making  for  his  production,  com- 
plainant's motion  for  a  temporary  injunction  was  de- 
nied.** 

In  all  cases  where  an  injunction  pendente  lite  is  granted, 
the  injunction  will  not  become  effective  except  upon  the 
complainant  giving  security  in  such  sum  as  the  court  or 
judge  may  deem  proper  conditioned  upon  the  payment 
of  such  costs  and  damages  as  may  be  incurred  or  suffered 
by  the  party  who  may  be  found  to  have  been  wTongfuUy 
enjoined  or  restrained  thereby .'•• 

In  some  instances  it  becomes  necessary  to  secure  a 
temporary  restraining  order  to  enjoin  the  alleged  in- 
fring(Ts  until  the  hearing  and  determination  of  a  motion 
for  injunction  pendente  lite.  The  courts  will  only  issue 
such  an  extraordinary  order  where  it  clearly  appears  by 
affidavit  or  by  verified  bill  of  complaint  that  immediate 

'  Humphries      v.       Armstrong  preine  Court  rules  rwiuiring  that 

(ISS7),  30  Fed.  (C.  C.)  66.    On  a  copy  of  the  infrinRcd  and  in- 

motion    for    preliminary    injune-  frin^inp  work.-^  shall  accompany 

tion  the  plaintiff  mu.st  sliow  that  the  complaint  should  he  followed 

the  copy  of  his  book  is  a  copy  of  whenever  |)ossible. 

the  book  which  wa.s  copyriKhted,  "6'.    Ricordi    v.    Hammerstein 

where  the  defendant  denies  this  (l'.K)7),  1.50  Fed.  (C.  C.)  AnO. 

to  be  the  fact.  'Act  Oct  15th,  1914,  Chapter 

fully  V.   Triamik   (l'.>16),  221>  323,  §18,  U.  S.  Compiled   Stat- 

Fed.    (D.    C.)    297.     The   court  utCiS  1916,  §  1243b,  p.  1963. 
holds  that  rule  two  of  the  Su- 


606  THE    LAW   OF   MOTION   PICTURES 

or  irreparable  injury,  loss  or  damage  will  result  to  the 
complainant  before  notice  can  be  served  and  a  hearing 
had  thereon.^*'  Here  as  well,  complainant  must  give 
security  in  a  sum  fixed  by  the  court  or  judge  granting 
the  order.  ^^ 

The  injunction  pendente  lite  and  the  temporary  re- 
straining order  are  binding  upon  the  parties  to  the 
suit,  their  officers,  agents,  servants,  employes  and  attor- 
neys or  those  in  active  concert  or  participating  with 
them,  and  who  shall  by  personal  service  or  otherwise  have 
received  actual  notice  of  the  same.^^ 

The    statute    prescribes  the   requisites   of    the    order 

for    the    injunction     or    restraining    order,     and    care 

should  be  taken  that  the  statute  be  hterally  comphed 
with.  ^3 

Where  an  injunction  will  work  very  serious  injury  to 
the  defendant,  and  the  damages  of  complainant,  if  he 
should  sustain  his  cause  of  action,  may  be  computed  with 
some  degree  of  certainty,  the  court  may  in  its  discretion 
grant  an  injunction  pendente  lite,  but  suspend  the  opera- 
tion of  the  same  upon  the  defendant  filing  an  undertaking 
in  a  specified  sum.  The  court  may  also  attach  furtlier 
conditions  precedent  to  the  suspension  of  the  injunction. 
It  occasionally  requires  the  defendant  in  such  cases  to 
file  statements  at  specified  periods  showing  gross  sales 

'"Act  Oct.  15th,  11)14,  Chapter  "  Act  Oct.  15th,  11)14,  Cliapicr 
32.3,  §  17,  U.  S.  Com[)ilc(l  Stat-  323,  §  10,  U.  S.  ('ompilcd  Stat- 
utes, 191(5,  §  1243a,  p.  1!)()2.  utes,  1«)10,  §  1243c,  p.  1!)03. 

"  Act  Oct.  1.5th,  1914,  C;haptcr  "  Act  Oct.  15th,  1914,  Chaj^ter 
323,  §  18,  U.  S.  Comphed  Stat-  323,  §  19,  U.  S.  Compiled  Stat- 
utes, 1916,  §  1243b,  p.  1903.  utcs,  1910,  §  1243c,  p.  1903. 


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PRELIMINARY    INJUNCTION 


607 


or  receipts  derived  from  the  exploitation  of  the  alleged 

infringing;  work." 

It  has  been  said  that  the  real  basis  for  th(^  granting; 
of  injunctions  pendente  hte  is  to  maintain  the  statua 

(JUO.'  ' 

Laches  of  the  complainant  will  bar  his  right  to  a  tem- 
porary injunction.  But  laches  must  not  be  confused 
with  mere  lapse  of  time.  It  is  the  element  of  time  in 
conjunction  with  the  element  of  knowledge  which  goes 


**  BuoHcy  V.  Kmpire  (1915), 
224  Fed.  (I).  C.)  646.  A  motion 
for  i\  tciiiponvry  injunction  wivs 
granted  in  tlie  case  of  nn  in- 
fringement of  a  musical  composi- 
tion, l)ut  till'  injunction  was 
suspended  upon  the  defendant 
filing  a  bond  in  a  specified  sum, 
and  also  statements  semi- 
monthly showing  gross  sales  and 
receipts  therefrom. 

See  also:  Hubbard  v.  Thompson 
(1882),  14  Fed.  (('.  ('.)  GSi). 

'&Lrt</</  V.  Oxmml  (1,S«»6),  7.") 
Fed.  (C.  C.)  703. 

Colgate  v.  While  (1901)),  Ki'.t 
Fed.  (C.  C.)  887. 

"While  there  is  much  douht 
about  the  (juestions  discussed  in 
the  briefs,  I  am  inclined  to  (lie 
opinion  that  tiic  complainant 
presents  a  case  calling  for  the 
preservation,  .so  far  as  practic- 
able, of  the  status  (|Uo  of  the 
parties    pending    the    litigation. 


If  an  injunction  is  not  issued  the 
complainant  may  suffer  the  very 
injury  of  which  he  complain."*, 
before  the  cau.se  can  be  heard. 
If  it  is  issued  the  defendant  will 
suffer  no  s{)ecial  harm,  and  for 
any  possible  injury  should  be 
protected   by   a   bond. 

"Upon  tiling  a  pro|X'r  and 
suflicient  bond,  therefore,  an  in- 
junction may  be  issued  restrain- 
ing the  defendants  pendente  lite 
from  publishing  the  complainant's 
portrait,  or  his  biograj)hy  .so 
far  as  the  same  may  be  bjised 
up<»n  information  obtained  from 
him,  and  from  enforcing  the  sub- 
scription contract." 

On  the  (iiu'stion  whether  an  in- 
junction will  be  granted  restraining 
a  newspaper  from  publishinp  an 
outline  of  the  plot  of  a  play  prior 
to  its  premiere  see:  Gilbert  v.  The 
Star  (Kng.)  (1S94),  11  T.  L.  R. 
4;  which  holds  in  the  affirmative. 


1 


G08 


THE    LAW   OF   MOTION   PICTURES 


to  make  up  laches.  "The  cases  in  which  laches  has  been 
considered  a  bar  to  equitable  reUef  proceed  on  the  assump- 
tion that  the  party  to  whom  it  is  imputed  has  knowledge 
of  his  rights."  ^^ 

Section  168. — Final  hearing. 

Upon  final  hearing  in  an  action  in  equity  complainant 
is  entitled  to  a  permanent  injunction,  to  damages,  to  an 
accounting  of  profits  and  to  full  costs  which  may  in  the 
discretion  of  the  court  include  a  reasonable  counsel  fee. 
He  is  not  necessarily  entitled  to  all  these  forms  of  rehef. 

He  is  ordinarily  entitled  to  an  injunction  where  an  in- 
fringement is  made  out,i'  even  though  there  is  no  proof 
of  any  damage  to  complainant.^^     There  are,  however, 


'« Encyclopaedia  Britannica  v. 
American  News-paper  Ass'n 
(1904),  130  Fed.  (C.  C.)  460, 
aff'd  134  Fed.  (C.  C.  A.)  831. 

For  summary  of  the  ca^es  where 
laches  ivas  set  up  as  a  defense  to 
infringement  of  copyright  see  notes 
to  Taylor  v.  Sawyer  Spindle  Co., 
22  C.  C.  A.  211;  Richardson  v. 
D.  M.  Osborn  &  Co.,  36  C.  C.  A. 
613. 

See  also:  Ilalstcad  v.  Grinnan 
(1894),  152  U.  S.  412;  14  Sup.  Ct. 
641;  Ritchie  v.  Sayres  (1900), 
100  Fed.  (C.  C'.)  520;  Galliher  v. 
Cndivdl  (1892),  145  U.  S.  368; 
12  Sup.  Ct.  873;  OW  Colony  Trmt 
Co.  V.  Dubuque  Co.  (1898),  89 
I-'od.  (C.  C.)  794. 


As  to  whether  the  bill  of  complaint 
7nust  be  verified  where  a  temporary 
inj unction  is  prayed  for  see: 
Rule  twenty-five,  subdivision 
fifth  of  the  Equity  Rules;  Fichtel 
V.  Barlhel  (1909),  173  Fed.  (C.  C.) 
489;  Black  v.  Henry  G.  Allen 
Co.  (1890),  42  Fed.  (C.  C.)  618; 
which  hold  in  the  affirmative. 

'Uieed  V.  Ilolliday  (1884),  19 
Fed.  (C.  C.)  325. 

'» McMillan  v.  King  (1914), 
223  Fed.  (D.  C.)  862.  "Proof 
of  actual  damage  is  not  neces- 
sary for  the  issuance  of  an  in- 
junction, if  infrinseuKMit  appears 
and  (lainafj;(;  may  prol)ably  fol- 
low from  its  contiiiuancc.  Rad 
V.  Ilolliday  (1884),  19  Fed.  (C.  C.) 


FINAL   HEARING 


GOO 


two  exceptions  to  his  right  to  an  injunction.  Wliere, 
during  the  ])endency  of  the  htigation,  the  term  of  com- 
plainant's copyright  expires,  lie  will  not  be  granted  an 
injunction,  although  he  may  be  given  damages  and  an 
account  of  prohts.''^  .Vnd  where  the  complainant  is  guilty 
of  gross  laches,  equity  will  not  grant  an  injunction.-" 


.'i2.'),  327;  Sampso7i,  etc.,  Co.  v. 
-S'carcr,  dc,  Co.  (irK);')),  1.34  Fed. 
(C.  C.)  Si)0;  Id.,  140  Fed.  (C.  C. 
A.)  539." 

Sec  in  this  connection:  D'Olc  v. 
Knnm.s  City  Star  (1899),  94  Fed. 
(C.  C.)  JWO. 

"Hartford  Print.  Co.  v.  Hart- 
ford Directory  (1900),  140  Fed. 
(C.  €.)  3;i2. 

See  also:  Blank  v.  Mfy.  Co. 
(lS.-)0),  Fed.  Cas.  (C.  C.)  No. 
1532. 

Hoot  V.  Railway  Co.  (ISSl), 
10.5  U.  S.  193.  PlaintifT  l)n)UKht 
action  after  the  expiration  of  his 
patent  for  an  accounting  <>f  j)rof- 
its  and  damages  for  infringe- 
ment within  tlie  tenn  of  the 
patent.  Demurrer  to  l)ill  was 
sustained,  the  court  liolding  tliat 
phiintifT  had  an  adetjuate  remedy 
at  hiw  for  his  damages. 

^Wcat  PtdA.  Co.  V.  Edward 
Thompsion  Co.  (19()S),  1.57  Fe<l. 
(C.  C.  A.)  lOai,  (1909),  1()9  Fi-d. 
(C.  C.)  833,  mod.  176  Fed.  83;J. 
"The  complainant  knew  at  lejist 
as  early  as  LS93  tliat  its  syllabi 


were  being  paraphra.sed  or  copied 
by  the  defendant'.s  writers,  or 
.some  of  them.  Its  conduct 
show-s  that  it  must  have  con- 
sidered tliis  to  have  been  a  fair 
u.se  of  its  publication.s  l)ecau.se  it 
did  not  l)egin  this  action  until 
the  defendant  after  IS  years  of 
labor  and  unmease  outlay  of 
money,  had  published  almost  its 
entire  work.  The  laches  of  the 
comi)Iaiiiant  and  the  hardship 
uiM)n  the  defendant  are  such  that 
we  think  the  trial  judge,  'ac- 
conling  to  the  course  and  prin- 
ciples of  courts  of  efjuity,'  was 
right  in  refusing  an  injunction  and 
accounting  of  proht.s.  But  we 
also  think  that  the  court  can  give 
damages  in  this  case  by  way  of 
com|x»nsation.  .  .  .  r/ii'-s  court, 
haritig  obtained  jurisdiction  of 
the  caiu^c  arul  having  the  power  to 
graiU  an  injunction,  has  the  right 
to  do  ju-tticc  between  the  parties 
aiui  to  di.fpose  of  it  finally,  eren  if 
this  involves  withholding  injutic- 
tire  relief  and  awarding  damages." 
J^ee   also:    Lawrence    v.    Dana 


610  THE    LAW   OF   MOTION    PICTURES 

It  may  be  stated  as  a  general  rule  that  the  right 
to  an  account  of  profits  is  incident  to  the  right  to 
injunction.-^ 

Indeed,  Section  twenty-five,  subdivision  (b)  of  the  Act 
expressly  provides  that  any  person  who  shall  infringe 
a  copyright  shall  pay  to  the  copyright  proprietor  such 
damages  as  he  may  have  suffered,  due  to  the  infringement, 
as  well  as  all  the  profits  which  the  defendant  has  made 
by  such  infringement. 

Complainant  is  entitled,  not  only  to  an  account  of 
profits,  but  his  actual  damages  as  well.  And  this  right 
is  expressly  given  by  the  above-mentioned  section  of 
the  Act. 

The  copyright  proprietor  may  secure  in  lieu  of  actual 
damages  and  profits  such  damages  as  to  the  court  shall 
appear  to  be  just,  and  in  assessing  such  damages  the 
court  may  in  its  discretion  award  the  sums  fixed  by  Sec- 
tion twenty-five,  subdivision  (b)  as  follows:  Where 
the  motion  picture  is  a  photoplay,  (its  exhibition  being  a 
dramatic  performance  --)  the  court  may  award  one  hun- 

(lS69),Fcd.Cas.No.8136(C.C.);  '^' Stevem   v.   Gladding    (1854), 

and     W enter     v.     E7icyclopedin  17  How.  447;  Fischd  v.  Lcuckcl 

(1905),  134  Fed.  (C.  C.  A.)  S;31.  (1892),    53    Fed.    (C.    C.)    499; 

See:  Masson's  Appeal   (1871),  Snnhorn    v.    Dnkin    (1889),    39 

70  Pa.  St.  26;  ValetUine  v.  Rich-  Fed.    (C.    C.)    266;    Belfoid    v. 

ardt   (1891),   120  X.  Y.  272;  27  ,S'cn7>/«T  (1892),  144  U.  S.  4S8;  12 

N.  K.  255;  Waile  v.  O'Ncil  (1890),  Sup.  ('t.  734;  aast  v.  F(dk  (1893), 

76  Fed.  (C.  C.  A.)  408;  Andrm  v.  .54  Fed.  (C.  C.  A.)  890;  Stevens  v. 

Berkshire  Co.    (1900),   147   Fed.  CaJ/y  (1854),  Fed.  Ca.s.  No.  13,-395 

(C.  C.  A.)  76;  New  York  City  (C.C.). 

V.    Pine    (1902),    185    U.    S.    93,  ^^  K<dcm     v.     Harper     (1911), 

22  Sui).  Ct.  592.  222  U.  S.  .55;  32  Sup.  Ct.  20. 


FINAL    Ill.AKINU  Oil 

(Irod  dollars  for  the  first,  and  fifty  dollars  for  every  suh- 
«ei|ueiil  infringing  perforniance  under  subsection  four 
of  subdivision  (b). 

Where  the  motion  picture,  however,  is  other  than  a 
])hotoplay,  the  interesting  (}uestion  presents  itself  as  to 
whctlicr  the  court  may  assess  damages  pursuant  to  sub- 
action  four.  The  question  has  not  at  this  writing  come 
up  for  decision.  Equity  would  seem  to  demand  that  the 
owner  of  a  copyright  in  such  a  motion  picture,  which  is 
frequently  as  valuable  as  a  motion  picture  photoplay, 
should  be  entitled  to  receive  the  same  rate  of  dam- 
ages as  in  the  case  of  motion  pictures  which  are  pho- 
toj)lays. 

Such  damages  when  fixed  by  the  court  in  lieu  of  actual 
damag(\s  and  ])rofits  must  not  be  less  than  two  hundred 
and  fifty  dollars  nor  be  more  than  five  thousand  dollars. 
But  such  limitation  does  not  a])ply  to  infringements 
occurring  after  actual  notice  to  the  defendant  either 
by  service  of  process  in  the  suit  or  other  written  notice 
served  ui)on  him.  In  that  event  the  recovery  is  un- 
limited. 

There  is  dictum,  however,  and  a  decision  of  the  District 
Court  to  the  effect  that  Section  twenty-five  leaves  the 
qu(\stion  of  the  arbitrary  award  of  damages  in  lieu  of  actual 
damages  and  profits  within  the  sound  discretion  of  the 
com't  to  allow  or  refuse  the  same  entirely.-''  In  a  later 
case  decided  by  the  Circuit  Court  of  Apjieals,  it  was  held 
that  Section  twenty-five  ])rohibited  the  award  of  merely 
nominal  damages.     It  held  that  where  there  was  an  in- 

^■^  Decker  v.  Ktrhisoii  (1«M:)),  v.  Li/diard-Peterson  Co.  (1'J12), 
225  Fed.  (U.  C.)  135;  Woodman       1U2  Fed.  (C.  C.)  67. 


612  THE    LAW   OF   MOTION    PICTURES 

fringement  the  court  was  bound  to  assess  at  least  the 
minimum  amount  as  damage.-"* 

We  believe  that  the  rule  laid  down  by  the  Circuit  Court 
of  Appeals  is  the  correct  one. 

The  very  purpose  of  Congress  in  fixing  a  minimum  was 
to  enable  an  injured  party  to  obtain  some  substantial 
compensation  for  the  injury  done  to  him  even  where  h© 
was  unable  to  show  actual  damage.  Even  if  the  com- 
plainant has  not  been  actually  damaged,  he  has  by  reason 
of  the  infringement,  been  put  to  the  trouble  and  expense 
of  commencing  and  maintaining  a  lawsuit  to  defend  his 
property  rights,  and  the  infringing  party  should  in  equity 
be  compelled  to  reimburse  the  complainant  for  liis  outlay. 

When  we  consider  that  there  is  also  a  maximum  we  can 
readily  see  the  justice  of  the  statute.  The  maximum  pro- 
tects the  innocent  infringer,  and  in  the  same  mamier  the 
minimum  protects  the  aggrieved  complainant. 

But  where  motion  pictures  infruige  upon  an  undrama- 
tized  or  non-dramatic  work,  and  the  infringer  shows  that 
he  was  not  aware  that  he  was  infringing,  and  that  such 
infringement  could  not  have  been  reasonably  foreseen, 
such  damages  under  Section  twenty-five  may  not  exceed 
the  sum  of  one  hundred  dollars. 

And  in  the  case  of  an  infringement  of  a  copyrighted 
dramatic  or  dramatico-musical  work  by  a  maker  of  motion 
()i('tur('s  and  his  agoncios  for  distribution  thereof  to  ex- 
hibitors, where  sue! i-iuf ringer  shows  that  he  was  not  aware 
that  he  was  infringing  a  copyrighted  work,  and  that  such 
infringement  could  not  reasonably  have  been  foreseen, 
th(!  (entire  sum  of  such  damages  recoverable  by  the  copy- 
"  Weslermann  v.  Dispatch  (1910),  233  Fed.  (C.  C.  A.)  609. 


FINAL   HEARING 


v,\:'> 


right  propriotor  from  siicli  infriiif:;iMfi;  makor  and  his  mcii- 
cit's  for  lh(>  distribution  to  cxliibitors  of  such  infringing 
motion  picture  may  not  exceed  the  sum  of  five  thousand 
dollars  nor  be  less  than  two  hundred  and  fifty  dollars. 

But  the  foregoing  exceptions  do  not  do])rive  the  copy- 
right i)r()j)ri('t()r  of  any  otlior  remedy  given  him  under 
the  Act  and,  here  as  well,  the  limitation  ^s  to  the  amount 
of  recovery  does  not  apply  to  infringements  occurring 
after  actual  notice. 

^"Plaint ilf  is  entitled  to  damages  down  to  the  date  of 
the  trial." 

The  rule  as  to  profits  under  the  present  Act  is  strictly 
enforced.-^  One  who  infringes  does  so  at  his  peril,  and 
stands  in  danger  of  being  compelled  to  turn  over  all  his 
profits  to  the  comjilainant.  And  this  is  so  no  matter  how 
great  the  dis]xirity  in  the  nature  of  the  respective  works, 


'-■'■  llardacrv  v.  Armstrong  (Kiig.) 
(I5)(M),  Times,  Oct.  27. 

^niaax  V.  Fcid  (19 IG),  2;U 
Fed.  (D.  C.)  105.  "The  plaintilT's 
right  to  dainage.s  ngiiinst  the  (Uv 
fendaiit  Feist,  reganlless  of  its 
innocence,  is  unciuestionable. 
Gfoss  V.  Van  Dyk  Gramire  Co., 
230  Fed.  412.  Ami  in  spite  of 
some  hmguage  in  tliat  opinion 
looking  to  a  (UtTerent  rul(>  for 
profits  I  think  the  same  .should 
a|)ply  to  them  as  to  damages. 
When,  as  in  coinright,  the  law 
provides  a  form  of  notice,  it  im- 
poses upon  everyone  at  liis  peril 
the  (lutv  to  learn  the  facts  con- 


veyed l)y  the  notice.  Without 
some  such  rule  it  could  not  be 
a  tort  innocently  to  copy  a  copy- 
righted work,  because  it  could 
not  be  said  that  among  the  rea.son- 
able  results  of  the  defendant's 
acts  was  comprlsetl  an  infringe- 
ment. It  becomes  a  tort,  only 
when  the  statute  imposes  a  duty 
on  everyone  to  advi.se  him.self 
of  \]\o  copyright.  I  cannot  .s(h> 
why  there  should  be  any  differ- 
ence Ixjtween  damages  anil  profits 
in  this  respect." 

S(H'    also:    niicbsch     v.     Christ 
(H)14),2()!»  iM'd.  (I).  C.)885. 


614  THE    LAW   OF   MOTION   PICTURES 

no  4iiatter  how  big  a  production  defendant  has  made, 
nor  how  small  and  insignificant  the  complainant's  copy- 
righted work.-^ 

It  does  not  matter  that  only  a  portion  of  the  defendant's 
work  infringes.  He  must  pay  over  all  his  profits  in  the 
entire  work,  especially  so  in  the  case  of  dramatic  composi- 
tions, where  only  a  small  portion  of  the  work  infringes.-^ 
The  courts  will  not  attempt  to  discover  what  portion 
of  the  profits  is  derived  from  that  part  of  complainant's 
work  which  was  made  use  of  by  defendant.-^ 

Although  the  copyright  proprietor  is  prima  facie  en- 
titled to  an  account  of  profits  and  damages,  situations 
may  arise,  however,  where,  because  of  some  act  of  omis- 
sion or  commission  equity  will  not  give  the  complainant 
such  relief. 

Where  a  copyright  proprietor  stands  by  and  permits 
an  infringer  to  expend  large  sums  of  money  in  exploiting 
the  infringing  work,  with  a  view  to  later  appropriating 
such  profits,  he  will  not  be  permitted  to  recover  any  of 
the  profits  derived  by  the  infringer  after  the  time  of  his 
discovery  of  the  infringement.''"  And  where  he  is  guilty 
of  laches,  he  will  not  be  awarded  an  account  of  profits 
or  damages,  although  he  will  receive  his  injunction.'" 

"  Damv.  Kirk  La  Sfielk  (1910),  ghan  v.  Meyers  (ISSS),  128  U.  "S. 

17.')  Fed.  (C.  C.  A.)  902.  617;  9  8up.  Ct.  177;  lidfnrd  v. 

Soe  also:  Cnllmjhnn  v.  'Meyers  Srrihnrr  (1892),   144  U.   S.  488; 

(1888),  128  11.  S.  017;  9  Sup.  Ct.  12  Sup.  (X  7'M. 
177.  "'//ar/.s-    V.    Fn'M    (1916),    2;{4 

^  Brady    v.    Daly    (IS!)!»),    175  Fed.  (I).  C.)  105. 
U.  S.  148;  20  Sup.  Ct.  62.  ^'  Woosler     v.     Crane    iK:    Co. 

^*  Dnmv.KirkLaS/wllriUnO),  (1906),     147    ImvI.     (C.    C.    A.) 

175  Fed.  (C.  C.  A.)  902;  Calla-  515. 


FINAL   HEARING 


Ol.') 


The  maxim  that  eciuity  will  not  aid  a  coniplaiiiuiit 
who  comes  into  court  with  unclean  hands  applies  as  well 
in   an   action   brought   for   infringement   of   copyright. ''-' 


*^  Harms  v.  Stern  (1010),  2;U 
Fed.  (C.  C.  A.)  645.  Vacating 
former  order  of  the  Circuit  Court 
of  Appeals  reported  in  229  Fed. 
42  and  uflinninp;  order  of  District 
Court  reported  in  222  Fed.  ')Hl. 

A  contract  wivs  made  between 
defendants  Harms  and  one  Rom- 
hQTg  whereby  Rondierg  agreed  to 
assign  to  Harms  all  musical  com- 
positions which  he  would  write 
for  a  specified  number  of  years. 
Romberg  sold  one  of  his  musical 
compositions,  written  during  the 
period  of  the  (Contract,  to  the  com- 
plainant Stern,  who  copyrighted 
the  song.  Defendants  Harms 
published  the  song  and  this  action 
wa.s  brought  for  infringement  of 
Stern's  copyright.  Relief  Wivs  de- 
nied to  Stern  upon  the  ground 
that  they  as  assignees  of  Romberg 
stood  in  his  shoes  and  tliat  he, 
having  been  guilty  of  ini(iuitous 
conduct  would  not  be  aided  by  a 
court  of  ecjuity;  that  the  fact  that 
an  injunction  was  ivsked  for  to 
protect  a  copyright  did  not  take 
the  caijie  out  of  the  general  i)rin- 
ciple  that  a  complainant  was  rc- 
(luired  to  come  into  equity  with 
clean  hands. 


"  In  our  opinion  the  plaintiffs 
did  n(jt  come  into  court  with 
clean  hands.  Their  misconduct 
relates  to  the  matter  now  in 
litigation.  Their  right  is  the 
right  of  Romberg  and  the  hitter's 
misconduct  is  for  tlie  purposes  of 
thi.s  suit  theirs.  Having  agreed 
by  a  binding  contract  to  a.ssign 
this  song  to  these  defendants, 
he  has  not  done  as  he  agreed, 
but  ha.s  repudiated  the  legal  and 
moral  obligations  which  the  agre<>- 
ment  imposed  upon  him.  In 
doing  so  he  has  committed 
ini(iuity  as  resjx^cts  this  copy- 
righted song  and  the  relation  of 
these  defendants  thereto.  .\nd 
with  his  hands  thus  unclean  lie 
ha.s  no  standing  in  a  court  of 
ecjuity  in  a.sking  an  injunction  to 
restrain  these  defendants  from 
exercising  a  right  which  he  bound 
himself  to  give  exclusively  to 
them.  As  the  plaint  ills  stand 
in  his  shoes  we  must  decline  to 
grant  them  what  we  could  not 
grant  to  Romberg." 

See  Kerr  on  Injunction  (r)th 
Ed.),  413. 

Slin{)sby  v.  Bradford  Truck 
Co.   (Fng.)    (IDOo),  W.  N.   122. 


616 


THE    LAW   OF   MOTION    PICTURES 


This  need  not  be  pleaded  as  a  defense  in  order  to  be  avail- 
able; the  court  may  of  its  own  motion  refuse  relief  to  a 
complainant  where  the  record  discloses  the  unconscion- 
able act.^3  But  it  must  be  remembered  that  the  maxim 
applies  only  where  the  misconduct  is  in  connection  with 
the  matter  in  htigation.=^^ 

And  where  the  court  refuses  upon  final  hearing  to  give 
relief  to  complainant  because  of  the  immorality  of  com- 
plainant's work  it  may  nevertheless  refuse  to  award  dam- 
ages to  defendant  upon  an  undertaking  given  by  com- 
plainant upon  the  issuance  of  a  temporary  restraining 
order,  where  defendant  has  in  fact  mfringed  complainant's 
work.^^ 

Under  Section  forty  of  the  Act  the  prevailing  party  is 
entitled  as  a  matter  of  right  to  full  costs  except  in  actions 


A  catalogue  which,  in  violation 
of  the  law,  misrepresents  articles 
as  having  been  patented,  will  not 
be  protected. 

Dames  v.  Bowes  (1913),  209 
Fed.  (D.  C.)  5.3,  aff'd  219  Fed. 
178.  Where  an  article,  which  is 
fiction  and  comes  from  the  imagi- 
nation of  the  reporter  is  held  out 
as  a  news  item  in  a  newspaper, 
a  copyright  of  tlie  newspaper 
does  not  include  the  alleged  news 
item  above  referred  to.  Any- 
one of  the  public  may  thereafter 
make  use  of  the  staUments 
made  in  the  news  item,  for  the 
purpose  of  lit<'rary  develop- 
ment. 


See  also:  Wright  v.  Tullis 
(Eng.)  (1845),  1  C.  B.  873,  where 
a  publisher  pretended  that  a  copy- 
riglited  work  was  a  translation 
from-  a  well  known  foreign 
writer,  when  in  fact  it  was 
the  original  work  of  a  native.  It 
was  held  that  such  pretense 
vitiated  the  copyriglit;  and  see: 
Tribune  Co.  v.  Associated  Press 
(1900),  116  Fed.  (C.  C.)  126. 

^' Benlley  v.  Tibials  (1915), 
223  Fed.  (C.  C.  A.)  217. 

^*Iientley  v.  Tibbals  (1915), 
223  Fed.  "(C.  C.  A.)  247. 

"  Broder  v.  Zeno  Mauvais 
Mmic  Co.  (1S98),  88  Fed.  (C.  C.) 
74. 


FINAL   HEARING 


or 


1)r<)iight  ])y  or  against  the  Unitod  States  or  any  officer 
tliereof,  and  the  court  may  award  a  reasonable  attorney's 
fee  as  part  of  the  costs.'*' 


'".S/rrKw.s  V.  Perm  Printing  (t* 
Publishing  Co.  (1915),  220  Fed. 
(D.  C.)  977.  "Under  the  cir- 
cumstances in  tliis  case  the  com- 
plainant is  entitled  to  reiison- 
able  attorney's  fee  as  part  of  the 
costs  under  the  provisions  of 
section  40  of  tlie  Act.  If  in  tin; 
answer  the  defentlant  had  ad- 
mitted that  tlie  complainant 
was  entitled  to  the  relief  granted 
herein,  tus  was  conceded  at  tlie 
trial,  it  is  cjuestionaljle  whether 
an  attorney's  fee  would  have  been 
allowed.  The  aiiswer,  however, 
compelled  the  complainant  to  sus- 
tnin  hij  proof  its  right  to  any  relief 
whatcrer.  lliuler  these  circum- 
stances, taking  into  consideration 
on  the  otiier  hand,  that  the  issues 
involved  are  clearly  defined  and 
settled  and  raise  no  intricate 
questions  of  law,  an  attorney's 
fee  of  seventy-five  (.'575.00)  dol- 
lars is  awarded  as  part  of  the 
costs." 

Hendricks  v.  Thomas  Pidilish- 
ing  Co.,  N.  Y.  Law  Journal 
(1917),  April  18  (United  States 
Circuit  Court  of  Appeals  —Second 
Circuit),  JuiIm;*'  llou^h  in  allowing; 
twenty-five  hundred  (S2,r)00.00) 
dollars  counsel  fee  .said: 


"It  ha.s  often  been  held  that 
allowance  of  coun.sel  fees  is  a 
matter  peculiarly  within  the  dis- 
cretion of  the  court  awarding  the 
same,  because  that  court  can 
(and  always  does)  proceed  up<in 
its  own  knowledge  of  the  value 
and  extent  of  the  profassional 
services  rendered.  We  have  lately 
approved  this  rule  in  Central 
Trust  Co.  V.  United  States,  <&c., 
Co.,  233  Fed.  Rep.  420.  Dis- 
cretionary matters  are  review- 
able only  when  abuse  of  dis- 
cretion Is  shown.  Certainly  no 
abuse  is  here  demonstrated,  and 
having  ourselves  examined  this 
record,  whereof  the  printed  testi- 
mony is  far  less  important  than 
the  enormous  and  ilUligestetl 
ma.ss  of  exhibits  requiring  much 
labor  to  prove  an  infringement 
now  admitted,  we  are  the  less  in- 
clinetl  to  disagree.  There  is  noth- 
ing in  Univer.ml  Film,  d'c,  Co. 
V.  Copperman,  218  Fed.  Rep.  577, 
es|M'cially  applicable  to  this  cjv^e. 
///  both  ra.sc.s'  the  trial  judge  in- 
quired as  to  the  value  in  a  partic- 
iUar  litigation  of  the  profe.<isional 
sennces  retuiered,  ami  fixed  them 
by  his  own  kn(nrledge  of  the  facts 
and     professitnud     rn.stom.       We 


618  THE    LAW   OF   MOTION    PICTURES 

The  court  upon  final  hearing  will  not  consider  itself 
bound  by  any  order  made  in  an  apphcation  for  an  in- 
junction pendente  lite,^"  as  the  purpose  of  temporary 
injunctions  is  to  hold  matters  in  status  quo  and  not  to 
adjudicate.  ^^ 

An  author  who  assigned  his  copyright  was  not  there- 
after permitted  upon  securing  a  renewal  thereof  to  enjoin 
his  assignee. ^^ 

If  the  primary  and  controlling  purpose  of  a  suit  is  to 
enforce  a  right  secured  by  the  copyright  laws,  the  Federal 
courts  have  jurisdiction  of  the  action,  although  it  inci- 
dentally involves  questions  respecting  the  validity,  inter- 
pretation and  effect  of  a  contract  through  which  com- 
plainant derives  title. ^"^ 

The  usual  procedure  in  an  action  for  injunction  where 
the  court  finds  that  there  has  been  an  infringement  of  the 
complainant's  copyright  is  to  enter  an  interlocutory 
decree  providing  for  an  injunction  and  sending  the  cause 
to  a  master  to  take  proof  of  damages  or  profits  or  both,''^ 
decline  to  disturb  the  award  is  an  innocent  infringer  from 
of  counsel  foes."  paj'ing    it. 

Gross    V.    Van    Dyke    Grarure  "  Millar     v.     Taylor      (I'^ng.) 

(1916),  230  Fed.  (C.  C.  A.)  412.      (1769),  4  Burr.  2380. 
A     couns(!l     foe     of     §350     was  ^»  Ladd  v.   Oxnard    (ISOG).   Tf) 

awarded.  Fed.  {C.  C.)  703. 

Mills  V.  Standard  Music  Roll  •''» /\//V/r    v.    Hanhs    (1S70),    7 

Co.  (2  ca.scs),  223  Fed.   (D.  C.)      Blatciif.  (C.  C.)   152. 
849.    A  counsel  fee  ul  S75  wsis  al-  ■"•  Woosler    v.     Crane     S:     Co. 

lowed  in  each  case.  (1900),  147  Fed.  {C.  C.  A.)  515; 

Gross  V.  Van  Dykv  (1910),  230      Ferris    v.    Frohman    (1912),    223 
Fed.  (('.  C.  A.)  412.     Tlu-  court,      U.  S.  424;  32  Sup.  Ct.  203. 
may  award  a  counsel  fee  and  re-  ■"  Iluebsch  v.  Christ  (1!)14),  209 

lieve  one  of  the  defendants  who       I'cd.    (I).   C.)    885;   Patterson   v. 


INJUNCTION    AS   TO    PART  ♦H!) 

Upon  the  return  of  the  master's  report  a  final  decree  is 
entered  awai'ding  complainant  damages  or  profits  or  both, 
together  with  costs,  and  in  the  discretion  of  the  court  a 
reas()nal)le  counsel  fee  as  part  of  the  costs. '- 

The  court  may,  instead  of  referring  the  cause  to  a  mas- 
ter, itself  fix  the  damages  as  well  as  the  profits.''^ 

\Miere  in  an  action  for  infringement  defendant  claims 
title  to  the  copyright  u])on  which  the  complainant  is 
suing,  the  court  has  jurisdiction  to  adjudicate  the  ques- 
tion of  title.^' 

\Miere  the  copyright  was  secured  under  an  Act  ])rior 
to  1900  hut  the  infiingement  occurred  subseciuent  to  the 
going  into  effect  of  the  1909  Act,  the  complainant  may 
pursue  the  remedies  given  under  the  1909  Act.'^ 

Tender  Section  twenty-seven  of  th(^  Act  the  proceedings 
f()]-  injunction,  damages  and  j^rotits  and  those  for  the 
seizure  of  infringing  coi)ies  and  i)lates,  may  be  united 
in  one  action. 

Section  169. — Injunction  as  to  part. 

The  court  has  the  right,  infringement  being  estabhshed, 
Ogilvic  Pub.  Co.  {l\)02),  Ud  Fed.  Act  of  H>09.  Hcuhsch  v.  Crisl 
(C.  C.)  451.  (1914),  209  Fed.  (D.  C.)  SS5. 

^2 1'ntlcr.wn  v.  Ogilvic  Pub.  Co.  "  Patlemm  v.  Ogilrie  Pub.  Co. 

(1902),  119  Fed.  (C'.C.)  451.  The  (1902),  119  Fetl.  (C.  C.)  451; 
decision  in  this  case  provided  Milh  v.  Stamlard  Music  lioll,2'2:\ 
tlint  complainant  might  take  a  Fed.  (D.  C.)  S49;  atT'd  Maitli. 
linal  (Iccrcc  lor  injunction  and  1917;  Gross  v.  Van  Dyke  Grarure 
six  cents  damages,  ..r  an  inter-  Co.  (1916), 230  Fed.  (('.('.  A.)  412. 
locutory  decree  for  an  injunction,  **  Biniwi    v.    WoodrujT    (l.S2n, 

witii  reference  to  a  master.  l^'d.  C'lus.  ((\  C.)  No.  1424. 

See  also:  §  40  of  the  ('o])y right  *'-  Huebsch  v.  Chri.'^t  (1914),  209 

Fed.  (D.  C.)  885. 


620  THE    LAW    OF   MOTION   PICTURES 

to  enjoin  the  further  performance  of  the  defendant's  entu'e 
work.  It  may,  however,  in  its  sound  discretion,  issue 
its  injunction  only  ds  against  that  portion  of  the  work 
which  infringes  where  the  defendant  may  readily  expur- 
gate such  part  of  the  infringing  work.^^ 

The  court  will  ordinarily  issue  such  an  injunction  when 
the  infringement  has  not  been  wilfully  caused  or  where 
both  works  are  based  upon  a  common  source,  and  the 
defendant  has  taken  only  a  small  portion  of  liis  work 
from  the  complainant.^^ 

This  is  especially  true,  where  the  damage  done  to  the 
defendant  by  an  injunction  would  be  out  of  all  propor- 
tion to  complainant's  damage.  ^^ 

But  this  will  not  be  done  where  the  part  which  infringes 
and  that  which  does  not  cannot  be  readily  separated. ^^ 

''  If  an  individual  chooses  in  any  work  to  mix  my  literary 
matter  with  his  own,  he  must  be  restrained  from  publish- 
ing the  literary  matter  which  belongs  to  me;  and  if  the 
other  parts  of  the  work  cannot  be  separated,  and  if  by 
that  means  the  injunction  which  restrains  the  publication 

*' Historical  Pub.  Co.  v.  Jones  siross  (1910),  181  Fed.  (C.  C.)  431. 

(1916),    231    Fed.     (C.    C.    A.)  "Yet,  as  what  is  permissible  and 

638.  ^  what  is   improper  are  so   iiiter- 

Scc    also:    Farmer    v.    Ehlner  woven  and  combined  in  one  and 

(1888),    33    Fed.    (C;.    C.)    491;  the  same  book  that  the  defend- 

Samson    v.    leaver    (1905),    110  ant  without  elimination   eannot 

Fed.   (('.  C.  A.)  539.  use  or  employ  what  is  his  own 

"  Slevemon  y.  Fo.r.  {V.)\ry),  22Ct  without    employing;     and     using 

Fed.  (I).  C.)  990.  that  which  is  not,  he  ought  not 

«  Farmer  v.  Elslner  (1888),  .33  at  this  juncture  exact  of  the  court 

Fed.  ((;.  C)  494.  the  task  of  such  separaticmsoasto 

**  Park  &  Pollard  Co.  v.  Kdlrr-  relieve  him  therefrom." 


WHIT   Ol     SEI7AIKE  f)21 

of  my  mat  tor  prevents  also  the  publication  of  his  own 
literary  matter,  he  has  only  himself  to  blame."  ^" 

Secton  170. — Writ  of  seizure. 

The  aggrieved  Jiarty  need  not  wait  until  final  adjudica- 
tion before  he  secures  the  seizure  of  the  hifringing  copies 
of  his  motion  picture. 

Section  twenty-five  of  the  Act,  subdivisions  (c)  and  (d), 
provide  that  the  infringer  shall  be  liable  to  deliver  upon 
oath  to  be  impounded  during  the  pendency  of  the  action 
upon  such  terms  and  conditions  as  the  court  may  pro- 
scribe all  articles  alleged  to  infringe  a  copyright,  and  that 
the  infringer  shall  also  be  hable  after  final  hearing  to 
dehver  up,  on  oath,  for  destruction  all  the  infringing 
copies  or  devices  as  well  as  all  plat os,  moulds,  matrices 
or  other  means  for  making  such  infringing  copies  as  the 
court  may  order. 

The  Supreme  Court  of  the  United  States  in  pursuance 
of  the  authority  vested  in  it  under  this  section  of  the  Act 
has  ado])ted  rules  for  the  practice  and  procedure  to  be 
followed  in  the  impounding  and  destruction  of  the  in- 
fringing dovicos,  plates,  etc.,  and  these  rules  are  contained 
in  Rules  tlu-cc  to  thirteen  inclusive,  thereof. 

The  rules  in  substance  provide  that  upon  the  institu- 
tion of  the  suit  or  at  any  time  before  final  judgment,  the 
complainant  or  his  agent  may  file  an  aflTidavit  giving 
the  number  and  location  to  the  best  of  his  knowledge  of 
the  alleged  infringing  copies,  plates,  etc.,  and  the  value 

»"  Lord  Eldon  in  Mairman  v.      (Enn),    2    Woodb.    &    M.   497; 
Tegg  (EnK.)  (1S2G),  2  Huss.  3S5.      Clrceue  v.  Bishop  (ISoS),  1  ClifT, 
See     also:     Webb     v.     Powers      (C.  C.)  18G. 


622  THE    LAW   OF  MOTION    PICTURES 

of  the  same,  together  with  a  bond  in  twice  the  reasonable 
value  of  such  infringing  copies  and  plates.  The  clerk  is 
thereupon  required  to  issue  a  writ  directed  to  the  Marshal 
directing  him  to  seize  and  hold  the  same  subject  to  the 
order  of  the  court.  The  rules  are  given  in  full  in  the 
appendix  herein. 

It  has  been  held  that  a  motion  for  an  order  to  show 
cause  why  films  seized  by  the  Marshal  pursuant  to  Sec- 
tion twenty-five,  subdivision  (c)  of  the  Act  should  not  be 
returned,  will  not  be  entertained  by  the  court  unless  it  is 
shown  pursuant  to  the  Supreme  Court  rules  that  the 
articles  seized  are  not  infringing  copies. ^^ 

Where  the  defendant  has  been  successful  in  the  action, 
he  may  recover  his  damages  under  the  complainant's 
bond.  Universal  Film  Mfg.  Co.  v.  Copperman,-''-  has  a 
detailed  discussion  of  the  mode  of  fixing  the  damages  in  a 
situation  of  this  kind.  The  court  there  fixes  defendant's 
loss  as  the  moneys  which  he  would  have  received  from 
exhibitions  of  the  film  during  the  period  of  detention 
of  the  film. 

The  court  follows  the  hne  of  reasoning  suggested  in 
Schlesinger  v.  Bedford,'"^  where  a  recovery  was  permitted 
for  the  prevention  of  dramatic  performances,  and  holds 
in  effect  that  the  modern  trend  of  thought  in  awarding 
damages  is  to  compensate  the  aggriev(Ml  party  for  all  of 
his  loss;  for  one  who  prevents  another  from  i)ursuing  his 
business  has  in  mind  the  nature  and  incidents  of  such 

''^  Crown  Feature  Film  X.  Belts  man  (1!)14),  21S  Fed.  (I).  C.) 
(1913),  200  Fod.  (I).  C.)  mi.  580. 

'•^  Univeraal    Film    v.    Copper-  ^^  Schlcsiuf/er  v.  Jicdford  (ISd'S), 

28  Weekly  Notes,  57. 


ACCOUNTING 


(323 


business,  and  should  be  liable  lor  the  losses  sustained  by 
reason  of  his  acts,  whether  the  loss  be  in  the  nature  of 
future  profits  or  investment  or  both. 

Actions  brouy;ht  under  the  Cojjyri^ht  Act  are  statutory 
actions,  as  distin^uislied  from  connnon-law  actions;  hence, 
attachments  and  replevins,  not  l^eing  specifically  i)ro- 
vided  for  in  the  Act,  may  not  be  maintained/'' 

And  the  rules  of  the  state  courts  wherein  the  writ  is 
issued  pertaining  to  attachment  and  replevin  have  no 
reference  thereto.'"'^ 


Section  171. — Accounting. 

Section  twenty-five,  subdivision  (b)  provides  that  in 
proving  profits  the  i)hiintiff  shall  be  recjuired  to  prove 
sales  only,  and  the  defendant  shall  be  re(iuired  to  prove 
every  element  of  costs  which  he  claims.  While  tliis  rule 
primarily  applies  to  works  which  are  reproduced  in  copies 


"Dixon  V.  Corinne  (1914), 
214  Fed.  (D.  C.)  418.  On  at- 
tachment. 

UUUs  &  Co.  V.  Hoover  (1900), 
142  Fed.  (C.  C.)  901.  On  re- 
l)levin. 

(luslin  V.  Record  Pub.  Co. 
(1904),  127  Fed.  (C.  C.)  603.  On 
replevin. 

Hut  see:  Morri.son  v.  Pctti- 
bonc  (1S97),  87  Fed.  (C.  C.) 
330. 

'*  Richardson  v.  liossehncin 
(1907),  U'A  Fed.  (C.  C.)  781; 
//(//«  V.  Iloorcr  (1906),  142  Fed. 
(C.   C.)    904;   Giistin   v.    Record 


Piib.  Co.  (1904),  127  Fed.  (C.  C.) 
603;  Reinhardt  v.  Smilh  (1903), 
121  Fed.  (C.  C.)  148;  Falk  v. 
Curtis  (1900),  102  Fed.  (C.  C.) 
'.)(i7. 

But  see  in  this  connection: 
Am.  Tobacco  Co.  v.  Werckmeister 
(1907),  207  U.  S.  284;  28  Sup.  Ct. 
72.  This  wa.s  the  ordinary  action 
for  replevin  under  the  New  York 
Code  based  on  4965,  Rev.  St.  of 
U.  8.  Held  that  as  the  (juestion  of 
tiie  propriety  of  brinfj;iiiK  .such  a 
form  of  action  was  not  raised  un- 
til on  a  motion  for  a  new  trial, 
it  could  not  be  heard  on  apjKial. 


624 


THE    LAW    OF   MOTION   PICTURES 


for  sale,  it  may  be  stated  that  where  the  infringement  is 
of  a  dramatic  work,  and  the  complainant  wishes  to  secure 
defendant's  profits,  he  must  only  show  the  gross  receipts, 
and  the  defendant  is  obligated  to  show  the  actual  cost  of 
production  and  the  disbursements  necessarily  mcurred 
by  him  in  the  exploitation  of  the  work. 

As  a  matter  of  practice,  the  procedure  which  is  ordina- 
rily followed  is  the  one  outlined  in  the  old  Chancery  Prac- 
tice Rule  one  hundred  and  seven. ''^ 


^6  Chancery  Rule  one  hundred 
and  seven:  "  All  parties  account- 
ing l)efore  a  master  shall  bring 
in  their  accounts  in  the  form  of 
debtor  and  creditor,  and  any  one 
of  the  other  parties  who  shall  not 
be  satisfied  with  the  accounts  so 
brought  in  shall  be  at  liberty  to 
examine  tlie  accounting  party 
upon  interrogatories,  as  the  mas- 
ter may  direct.  On  any  reference 
to  take  or  state  an  account, 
the  master  shall  be  at  liberty 
to  allow  interest  as  shall  be  just 
and  equitable,  without  any  spe- 
cial directions  for  that  purpose, 
unless  a  contrary  direction  is 
contained  in  the  order  of  refer- 
ence, and  every  change,  discharge 
or  state  of  facts,  brought  in  be- 
fore the  master  shall  be  verified 
by  oath  as  true,  cither  positively 
or  upon  informal  ion  and  belief." 

\cii'  York  Hunk  Note  Co.  v. 
Ilamillon    Eng.    Co.    (H)OO),    .W 


A.  D.  (N.  Y.)  488;  67  N.  Y.  Supp. 
827.  "  When  the  account  is  pre- 
sented, the  plaintiff  is  at  liberty 
to  surcharge  the  same  xvith  any 
sums  which  he  can  prove  ought  to 
be  added  thereto,  and  he  may  ex- 
amine the  party  presenting  the 
account  for  that  purpose.  The 
defendant  may  also  shoiv  matters, 
uithin  the  scope  of  the  accounting, 
xohich  lend  to  relieve  him  from  the 
apparent  amount  which  woidd 
otherwise  be  charged  against  him." 
The  (luestion  was  again  con- 
sidered in  Kligcr  v.  Rosenfeld 
(1907),  120  A.  I).  (X.  Y.)  306, 
10.')  N.  Y.  Supp.  214.  "The 
])r()per  i)ra(;ticc  where  a  party 
is  adjudged  to  account  either 
before  the  court  or  a  referee 
appointed  by  it,  is  that  pre- 
scribed by  the  107th  Chancery 
Kule,  and  Ihe  party  so  directed 
should  prepare  and  (lie  and  xcrily 
an  account  of  tlie  matter  as  iu; 


ACCOUNTINCi  G25 

After  the  piirties  appear  before  the  Master,  the  de- 
fendant is  directed  to  file  liis  account.  The  defendant 
charges  himself  with  the  gross  receipts  and  credits  himself 
with  his  disbursements.  The  account  is  verified.  If  the 
complainant  is  dissatisfied  with  any  portion  of  the  ac- 
count he  files  exceptions  thereto,  stating  sj)ecifically  the 
nature  of  his  objections,  and  if  it  is  with  respect  to  any 
particular  item  of  the  account,  by  pointing  out  the  same. 

Hearings  are  then  had  before  the  Master  on  the  items 
to  which  objections  have  been  taken. 

It  would  seem  under  the  rule  laid  down  by  Section 
twenty-five,  that  if  the  objection  is  taken  to  any  part  of 
the  receipts,  the  burden  is  on  the  com])lainant.  He  may 
subpoena  the  books  of  account  "  as  well  as  the  defendant 
himself,  or  its  oflficers,  if  a  cori^oration,  as  well  as  other 
witnesses. 

If,  on  the  other  hand,  the  objection  is  taken  with  re- 
spect to  the  disbursements  of  the  defendant,  then  the 
defendant  must  prove  by  comi}etent  e\'idence  the  cor- 
rectness of  the  items  to  w'hich  the  objections  have  been 
taken,  otherwise  those  items  are  stricken  from  the  ac- 
count, and  the  defendant  is  surcharged  with  them.^^ 

claims  the  facts  to  he.    Xcw  York  uuuk.     In  this  manner  is!>iics  for 

Hank  Xotc  Co.  v.  Hamilton  En-  liliydtion     are     made     concerning 

graving  Co.  (1900),  .56  A.  D.  (N.  apccijic  items  and  the  mass  of  un- 

Y.)  488,  67  N.  Y.  Supp.  827.     //  contested  items  are  eliminated  from 

sitch    account    is    mtixfactorij    to  proof    and    further    consideration 

the  ()j)posing  parli/,  that  is  an  end  until  the  making  up  of  tfic  findings 

of  the  nuiltcr.    If  it  is  not,  the  other  and  report." 

party    should   file    his    objections  "  Callaghan  v.  Meyers  (1888), 

ami  specify  what  is  xorong  ami  what  128  U.  S.  617;  \)  Sup.  Ct.  177. 
surcharges    fie    claims    should    be  ''^Ginn  v.  Appollo  (1915),  228 


626 


THE    LAW   OF   MOTION    PICTURES 


In  this  respect  the  old  Chancery  Rule  above  mentioned 
has  been  modified  by  the  Act.^^ 


Section  172. — ^Actions  at  law. 

A  copyright  proprietor  may  bring  his  action  on  the 
law  side  of  the  court  and  ask  for  damages  by  reason  of 
the  infringement.  He  acquires  thereby  the  absolute 
right  to  a  trial  by  jury.  The  question  of  infringement, 
which  is  a  question  of  fact,  then  becomes  one  for  the 
jury.  60 

Fed.  (D.  C.)  214.  "In  patent 
cases,  the  profits  are  found  by 
contrasting  the  amount  of  pro- 
ceeds of  sales  made  with  the  total 
cost  of  production.  In  copyright 
cases,  under  the  Act  of  1912  (Act 
Aug.  24,  1912)  the  plaintiff  may 
show  only  the  receipts,  or  debit 
side  of  the  account,  and  put  upon 
the  defendant  the  burden  of 
proving  the  cost  of  production, 
or  the  plaintiff  may  exact  the 
j)enalty.  A  successful  plaintiff 
is  thus  given  something  in  the 
nature  of  certain  options.  He 
may  take  damages  and  profits 
or  the  penalty  imposed.  If  he 
takes  profits,  he  may  avail  him- 
self of  the  method  of  proving 
profits  givcm  by  tiie  Act  of  1912. 
This  method,  however,  is  not  e.\- 
clusive.  Whatever  method  he 
adopts  he  may  apply  it  by  calling 
uixni  the  defendant  to  account, 


or  by  proving  either  sales  or 
profits  through  and  by  evidence 
introduced  or  witnesses  called 
by  him." 

^^  In  the  following  cases  mis- 
cellaneous questions  arising  upon 
an  accounting,  such  as  "proper 
elements  of  cost,"  "items  prop- 
erly included  in  gross  receipts" 
etc.,  etc.,  are  discussed.  Cal- 
laghan  v.  Meyers  (1888),  128 
U.  S.  617;  9  Sup.  Ct.  177;  Stevens 
v.  Gladding  (1856),  Fed.  Cas. 
No.  13,397  (C.  C.)  Hartford  Co. 
V.  Hartford  D.  Co.  (19()()),  148 
Fed.  (C.  C.)  470,  and  Dam  v. 
Kirk  La  Sheik  (1911),  189  Fed. 
(C.  C.)  842,  particularly,  which 
involves  the  accounting  on  an 
infringement  of  a  dramatic  com- 
position. 

See  also:  Chils  v.  Gronlatbd 
(1890),  41  Fed.  (C.  C.)  145. 

'^"Maxwell  v.  Goodwin  (1899), 


ACCOUNTING  G27 

Section  twenty-fivo,  sul)(Hvision  (1))  iirovidiiig  for  the 
piiyinciit  of  danuigt'S  as  well  as  profits,  applies  to  an  ac- 
tion at  law  as  well  as  to  one  in  equity.  The  difference  is 
that  in  one  the  jur}',  instead  of  the  master,  assesses  the 
damages;  and  the  use  of  the  word  ''court"  in  the  statute 
does  not  recjuire  the  judge  acting  by  himself  to  assess  the 
damages,  but  on  the  contrary,  he  is  permitted  to  direct 
the  jury  to  assess  the  damages  within  the  prescribed 
hmits.'"' 

It  has  been  held  no  error  to  instruct  the  jury  that  it 
may  award  exemj^lar}-  damages  in  the  case  of  a  wanton 
or  maUcious  disregard  of  complainant's  rights  in  his  work.^- 

^^^lcre  the  action  is  tried  at  law,  the  judge  must  submit 
the  issues  of  infringement  to  the  jur>',  but  where  the 
verdict  of  the  juiy  is  clearly  against  the  weight  of  evi- 
dence, the  trial  justice  may  set  it  aside.^^ 

It  would  seem  that  a  complainant  may  bring  his  action 
for  damages  for  infringement  in  the  law  branch  of  the 
court,  and  during  the  i)endency  of  that  action  may  insti- 
tute a  new  action  for  an  injunction,  upon  the  theory  that 
the  action  at  law  is  designed  to  secure  indemnity  for  the 
past,  and  the  injunction  protection  for  the  future.^^ 

93  Fed.  (C.  r.)  66.').    "Applying  «'  Mail  A  Express  v.  Life  Pub. 

the  rule  held  in  patent  cause.><  at  Co.  (1912),  192  Fed.  (C.  C.  A.) 

law,  that  issue-s  of  infringement  899. 

and    itlentity    mu.st    be    pa.ssed  *-  Press    Pub.    Co.    v.    Monroe 

upon  by  the  jury,"  it  is  proper  to  (1896),  73  Fed.  (C.  C.  A.)  196. 

sul)init  the  issue  of  infringement  "  Maxurll  v.  Goodwin   (1899), 

or  piracy  to  a  jury   in   a   copy-  93  Fed.  (C.  C.)  665. 

right  action.  **  Schumacher      v.      Schwcnckc 

Dam  V.  Kirk  La  ShcUe  (1910),  (1885),  25  Fed.  (C.  C.)  466.  "  The 

175  Fed.  (C,  C.  A.)  902.  copyright  law  seems  to  contem- 


628 


THE    LAW   OF   MOTION    PICTURES 


Section  173. — Actions  purporting  to  be  brought  undei 
the  Copyright  Act. 
Complainants  occasionally  mistake  their  remedies. 
Actions  are  brought  under  the  Copyright  Act  where  the 
questions  involved  have  reference  solely  to  contractual 
relations  between  the  parties.  The  Federal  courts  will 
not  entertain  such  actions,  unless  the  other  jiurisdictional 
facts  are  present.^^ 


plate  beth  remedies;  and  no  rea- 
son is  suggested  why  a  party  who 
seeks  the  first  should  be  deprived 
of  the  second." 

«^  Editorial  in  N.  Y.  Law  Jour- 
nal, September  19, 1917. 

Suits  in  State  Courts  affecting 
Patentable  and  Literary  Rights. 

The  decision  of  the  Supreme 
Judicial  Court  of  Massachusetts 
in  Aronson  v.  Otiov  (July,  1917, 
116  N.  E.  951)  is  of  more  than 
usual  interest  because  of  Chief 
Justice  Rugg's  treatment  of  a 
defense  that  is  very  frequently 
raised  when  patentable  or  copy- 
riglit:il)le  rights  are  incidentally, 
though  not  directly,  brought  in 
issue  in  State  courts.  It  appeared 
tliat  two  of  the  defendants, 
former  employees  of  the  plaintiffs, 
as.sociated  tlK'ms<'lves  with  a  third 
jM'rson  in  the  manufactine  of 
petticoats  in  accordance  witli  an 
idfa  to  secure  elasti(;ity  in  con- 
nection with  the  seams  originated 


by  one  of  the  plaintiffs  and  se-. 
cretly  communicated  to  the  de- 
fendants in  the  course  of  their 
employment.  The  plaintiff  origi- 
nator had  applied  for  a  patent 
embodying  such  idea,  but  his  ap- 
plication had  been  disallowed. 
The  defendants  had  applied  for 
a  patent  involving  the  same  idea 
and  their  application  had  been 
neither  allowed  nor  disallowed 
but  was  still  pending.  In  such 
condition  of  the  facts  an  injunc- 
tion with  damages  is  granted 
prohibiting  the  defendants  from 
disclosing  and  using  the  plain- 
tiff's i(l(!a  for  ail  elastic  seam  on 
the  ground  that  it  is  a  protect- 
able trade  secret. 

While  there  is  considerable 
novelty  in  this  l)ranch  of  the  case, 
the  j)rincipal  gciiernl  interest  lies 
in  tlie  d(!termination,  aft-er  dis- 
cussion, that  the  subject-matter 
of  the  suit  is  not  within  the  cog- 
nizance  of    the    Federal    courts, 


ACTIONS   TO    BE    BROUGHT    T'NDKR   COPYRIGHT   ACT      029 


For  instfinfo.  whoro  tho  lop;al  titlo  in  copyrighted  books 
was  not  in  the  copyright  proprietor,  his  remedy  for  breach 

Even  when  ii  patent  has  been 
granted,  business  transactions 
entered  ufHjn  and  exeeuted  before 
the  patent  was  granted  are  not 
ordinarily  affected.    Concedwlly, 


but  that  tlie  State  court  has 
jurischctioii.  The  entire  opinion 
will  amply  repay  jierusal.  After 
showing  by  the  citation  of  many 
authorities  that  prior  to  the  is- 
suance of  a  patent  no  case  can 
arise  under  the  patent  laws  re- 
sjx'cting  the  relative  rights  of 
parties  to  or  under  a  patent, 
the  learned  Chief  Justice  said 
in  part  as  follows: 

"The  case  at  bar,  in  our  opin- 
ion, does  not  arise  'under  the 
patent  laws'  of  the  United  States. 
The  i^laintilTs  do  not  rest  upon 
any  right  secured  by  the  patent 
laws,  and  they  do  not  assail  any 
niono{)oly  conferred  upon  the 
defentlants  l)y  such  laws.  Every 
reference  to  the  application  for  a 
patent  and  to  the  patent  laws 
might  be  stricken  from  the  bill, 
and  every  fact  respecting  that 
subject  might  be  eliminated  from 
the  master's  report,  without  af- 
fecting or  impairing  the  funda- 
mental rights  up(m  which  the 
phiiiititTs'  r:use  rests.  On  the 
otluT  hand,  giving  full  etTect 
to  evcr>'  allegation  in  the  bill 
touching  patents  and  to  every 
fact  fouml  i)y  the  master  relative 
to  that  subject,  involves  no  right 
ai'ising   under   the   patent   laws. 


no  patent  was  granted  to  any- 
body for  anything  respecting  this 
subject  until  long  after  this  suit 
was  instituted.  The  question 
which  the  plaintiffs  are  seeking 
to  have  settled  in  this  cause  is 
not  their  right  to  a  patent,  but 
their  right  t«  lie  protected  from 
unlawful  trade  interference.  The 
circumstance  that  priority  of 
conception  f)f  an  idea,  which 
may  or  may  not  involve  a  pat- 
entable invention,  was  incident- 
ally involved  in  one  respect  of 
that  unlawful  interference,  ren- 
tiers the  subject  of  the  Patent 
Laws  of  the  United  States,  if  a 
patent  ever  should  be  granted, 
collateral  and  incidental  to  a 
cause  over  which  the  state  courts 
have  jurisdiction. 

"  This  suit  is  not  brought  to 
determine  the  priority  of  an 
invention,  and  hence  the  right  to 
a  patent.  It  is  brought  to  pre- 
vent the  unlawful  use  of  informa- 
tion, which  may  relate  in  part  t^i 
an  invention  al)out  the  patenta- 
bility of  which  there  is  contention, 


630 


THE    LAW   OF   MOTION    PICTURES 


of  a  contract  respecting  the  sale  of  the  books  was  held  to 
be  one  for  breach  of  contract,  and  not  one  cognizable 


which  has  been  obtained  under 
such  confidential  circumstances 
that  it  ought  not  to  be  used  to 
their  harm.  See  Agawan  Co.  v. 
Jordan,  7  Wall.  583,  602,  19 
L.  Ed.  177.  Therefore  the  state- 
ment of  the  Circuit  Court  judge 
in  Standard  Scale  &  Foundry  Co. 
V.  McDonald,  127  Fed.  709,  710, 
that '  it  was  never  in  the  mind  of 
Congress  that  the  inventor,  with- 
out complying  with  the  statutory 
scheme  of  submitting  his  claim 
to  the  Patent  Office  for  its  action 
thereon,  could  go  into  a  United 
States  court  in  the  first  instance, 
to  have  determined  the  question 
of  his  right  to  a  patent,'  has  no 
application  to  the  facts  here 
disclosed. 

"  The  plaintiffs'  cause  of  action 
seems  far  more  remote  from  the 
patent  laws  of  the  United  States 
than  actions  on  notes  given  for 
patents  where  the  voidness  of 
the  patent  (Dickinson  v.  Hall, 
14  Pick.  217,  2o  Am.  Dec.  390), 
its  invalidity  because  of  fraudu- 
lent pro(Mir(!ment  (lUiss  v.  Negus, 
8  Ma.ss.,  46),  its  want  of  utility 
{Biercc  v.  Stocking,  1 1  Cray,  174), 
and  its  utter  worthlessness  (Lester 
v.  I'nhncr,  4  Allen,  14.')  ),  have 
been  considered  jis  defenses  and 


directly  adjudicated  by  this  court. 
All  of  these  cases  were  cited 
with  approval  in  Pratt  v.  Paris 
Gaslight  &  Coke  Co.,  168  U.  S. 
255,  260,  261,  18  Sup.  Ct.  62, 
41  L.  Ed.  458),  together  with  an 
amplitude  of  other  authorities 
showing  the  wide  scope  of  juris- 
diction rightly  taken  by  state 
courts  of  questions  involving 
incidentally  the  validity  of  pat- 
ents when  the  action  was  not 
brought  directly  and  chiefly  for 
infringement  or  to  test  the  vaUd- 
ity  of  a  patent." 

As  to  actions  in  state  courts 
affecting  property  that  might 
be  the  subject  of  copyright  it 
should  be  kept  in  mind  that  the 
American  Copyright  Act  now  in 
force  expressly  provides  that 
nothing  therein  contained  "shall 
be  construed  to  annul  or  limit 
the  right  of  tiie  author  or  pro- 
prietor of  an  unpublished  work, 
at  common  law  or  in  equity, 
to  prevent  the  copying,  publica- 
tion or  use  of  such  unpublished 
work  without  his  consent,  and 
to  obtain  damages  therefor. "  (U. 
S.  Com  p.  Stat.,  1913,  §95  IS. 
The  American  Act  differs  horn 
the  Englisli  ( 'opyriglit  Act  of 
1911  in  that  the  latter  "confera 


ACTIONS    TO    BE    UHOVCUT    INDEU    (  OPVUHJHT    ACT      iVM 


rnpyrinht  in  uni)ul)lishcd  a.s  well 
as  published  works,  and  abol- 
ishes the  (juiisi-eopyri^iht  at  com- 
mon law  previously  enjoyed  by 
the  former,  preserving,  liowever, 
the  common-law  right  to  have  a 
jx'riod  of  trust  or  ecjnfidence  re- 
strained. "  The  Law  of  Copyright , 
by  George  Stuart  Roberts,  1912, 
Preface. 

In  the  United  States  common- 
law  rights  in  literary  property 
must  be  sued  on  in  a  state  court 
unless  the  matter  in  dispute  is 
sufficiently  large  and  an  alien 
is  a  party,  or  the  suit  is  between 
citizens  of  different  states,  so 
as  to  confer  jurisdiction  upon  a 
federal  court.  In  like  manner 
as  in  suits  incidentally  concern- 
ing patentable  rights,  tlie  con- 
tention is  not  infrecjuently  made 
in  actions  in  state  courts  affect- 
ing literary  or  artistic  property 
riglits  that  the  Federal  courts 
have  exclusive  juri.sdiction.  On 
Monday  last  we  referred  to 
the  decision  of  Mr.  Justice  Green- 
bauin  in  Fisher  v.  Slar  Company 
(X.  Y.  Law  Journal,  January  2(5, 
1917,  p.  1497),  which  turned  ujx^i 
a  question  of  trade-mark  or  trade 
name.  It  appeared,  among  other 
things,  that  a  cartoonist,  whose 
rights  to  the  trade-mark  in  "  Mutt 
and  Jeff"  were  upheld,  had  not 
only  registered  those  words  as  a 


trade-n)ark  in  his  name,  but 
further,  that  he  had  published 
and  copyrighted  in  his  name 
books  containing  some  of  his 
drawings  and  published  under 
the  title  "The  Mutt  and  Jefi 
cartoons,  by 'Bud' Fisher."  Mr. 
Justice  Greenl)aum  felt  con- 
strained to  remark  in  reply  to 
points  made  by  counsel  that  "in 
passing  upjon  the  voluminous 
findings  submitted  by  the  de- 
fendant I  desire  to  observe  that 
because  reference  is  made  to 
certain  copyrights  in  the  plain- 
tiff's findings  there  is  no  impli- 
cation that  this  court  is  disposing 
of  this  case  upon  the  theory  that 
a  copyright  is  involved.  The 
facts  with  reference  to  the  copy- 
right are  merely  incidental  in 
the  determination  of  the  ultimate 
questions  presented." 

The  test  of  jurisdiction  is 
similar  to  that  applied  in  the 
Ma.ssachusctts  case  as  to  patent- 
al)le  projjerty,  that  is  whether 
the  suit  is  really  to  uphold  or 
recover  damages  for  infringe- 
ment of  "any  right  protected 
under  this  (the  Copyright)  act." 
And  a  state  court  or  a  Feileral 
court,  if  for  sjjecial  reasons  it 
has  jurisdiction,  may,  in  uphold- 
ing merely  conunon-law  rights 
in  literary  proixM-ty,  grant  reme- 
dies   that  are    sinulur    to    those 


632 


THE    LAW   OF   MOTION   PICTURES 


under  the  CopjTight  Act.^^  And  where  the  suit  was  to 
enforce  a  contract  between  a  publisher  and  an  author,  it 
was  held  not  to  be  an  action  arising  under  the  Copyright 
Act.^^    A  covenant  in  a  contract  between  a  proprietor  of  a 


prescribed  by  the  Copyright  Act 
for  infringement  of  Hterary  works 
that  have  actually  been  copy- 
righted. French  v.  Kreling,  63 
Fed.  621. 

«« Harrison  v.  Maynard  (1894) , 
61  Fed.  (C.  C.  A.)  689. 

'^■'Silver  v.  Holt  (1895),  84 
Fed.  (C.  C.)  809. 

Baldwin  v.  Baird  (1885),  25 
Fed.  (C.  C.)  293.  Two  parties 
had  contracted  for  the  sale  of  a 
book  each  one  to  have  a  certain 
territory.  Subsequently  the  suc- 
cessors of  one  party  brought 
out  a  new  edition  of  the  work 
and  invaded  the  other's  territory. 
Held  that  this  was  not  a  question 
of  copyright  but  of  contract,  and 
injunction  was  granted  restrain- 
ing. 

Pulte  V.  Derby  (1852),  5  Mc- 
Lean, 328.  The  author  of  a  book 
sought  to  restrain  the  publishers, 
who  had  copyriglitc^l  tlic  book  in 
their  own  niinics,  from  pul)lisli- 
ing  a  third  edition.  The  parties 
had,  before  the  book  was  copy- 
righted, entered  into  an  agree- 
ment whereby  the  right  wius 
grantcil    to    the    defendants    to 


publish  a  first  edition  and  as 
many  copies  of  the  second  edi- 
tion as  they  could  sell.  The  de- 
fendants in  a  cross  bill  claimed 
that  as  the  copyright  was  in 
them,  the  complainant  had  no 
right  to  publish  a  revised  edition 
and  prayed  that  he  be  enjoined. 
The  court  held  that  the  rights 
of  the  parties  depended  upon  the 
construction  of  the  contract  alone 
and  that  there  was  no  question 
in  the  case  which  could  be  said 
to  arise  under  the  Copyright  Act. 

See  also:  Albright  v.  Teas 
(1882),  106  U.  S.  613;  1  Sup.  Ct. 
550.  Held  that  a  suit  involving 
contract  rights  granted  in  a  pat- 
ented invention  did  not  involve 
patent  rights  as  such,  and  could 
not  be  brought  in  the  United 
States  courts. 

"The  controversy  between 
them  as  stated  by  the  appellants 
themselves  is  whether  certain 
goods  manufactured  l)y  them 
cmlxxly  the  invention  covered 
by  the  appellee's  patents.  This 
does  not  necessarily  involve  a 
coiistruclion  of  the  patents. 
Botli   parties   may   agree   as   to 


ACTIONi=;   TO    HE    BROrCHT   T'NDKR    COP^TtlOHT   Af"T      033 


copyright  and  a  licensee,  wherehy  tlie  licensee  binds  him- 
self not  to  infringe,  is  enforceable  in  a  state  court  in  the 
same  manner  as  the  contractual  rights  and  obligations 
arising  out  of  any  other  negative  covenant  in  the  con- 
tract.'^" 


what  the  patented  invention 
is  and  yet  disagree  on  the  ques- 
tion whether  the  invention  is 
employed  in  the  manufacture 
of  certain  specified  goods.  The 
controversy  between  the  parties 
in  this  case  is  clearly  of  the  latter 
kind." 

See  also:  Herzog  v.  Heyman 
(1897),  151  N.  Y.  587;  45  N.  E. 
1127;  Waterman  v.  Shipman 
(1891),  130  X.  Y.  301;  29  N.  E. 
111. 

**  Comerma  Co.  v.  Comerma  and 
Tile  Arch  Const.  Co.,  N.  Y.  Law 
Journal  (1017),  June  1st.  "The 
evidence  cstaljlishes  that  the 
plaintiff  was  a  licensee  under 
the  patents  mentioned  in  the 
agreement  between  the  parties, 
and  it  is  admitted  that  the  plain- 
tiff's license  was  not  an  exclusive 
one  even  within  a  limited  ter- 
ritor>'.  It  may  be  presumed  that 
the  plaintiff  has  the  mere  naked 
right  of  user  of  the  patented 
article  for  a  consideration  paid 
or  to  be  paid.  Under  the  agree- 
ment betweei\  tlie  parties  to 
this  action,  defendant  Comerma 


stipulated  not  to  infringe  the 
two  patents  in  question  and  not 
to  (juestion  their  validity.  In- 
asmuch as  plaintiff's  claim  does 
not  arise  under  the  Patent  Laws, 
but  under  a  contract,  it  is  e\'i- 
dent  that  the  plaintiff  could 
not  enforce  its  rights  against 
defendantis  in  the  Federal  courts, 
which  have  exclusive  power  to 
adjudicate  rights  under  the  Pat- 
ent Laws  of  the  United  States, 
but  have  no  jurisdiction  to  adju- 
dicate rights,  which  depend  en- 
tirely upon  contractual  obliga- 
tions in  relation  to  patents. 
If  the  plaintiff  may  not  as.sert 
its  rights  under  the  Patent  Laws, 
it  seems  clear  that  he  never  could 
assert  them  unless  the  state 
courts  had  jurisdiction  to  enforce 
them.  We  are  thus  required  to 
construe  the  contract  and  de- 
termine what  the  parties  meant 
when  Comerma  agrectl  not  to 
''infringe"  the  patents.  If  the 
word  "infringe"  were  construtnl 
to  refer  to  the  making,  .'telling 
or  using  without  right  of  a  pat- 
ented article,  which  is  the  sense 


634  THE    LAW   OF   MOTION   PICTUKES 

Section  174. — Willful  infringements. 

Section  twenty-eight  of  the  Act  provides  that  any  per- 
son who  willfully  and  for  profit  shall  infringe  any  copy- 
right secured  by  the  Act  or  who  shall  knowingly  and 
willfully  aid  or  abet  such  infringement  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  conviction  thereof, 
shall  be  punished  by  imprisonment  for  not  exceeding 
one  year  or  by  a  fine  of  not  less  than  one  hundred  dollars 
nor  more  than  one  thousand  dollars  or  both  in  the  dis- 
cretion of  the  court. 

The  interesting  question  that  arises  under  this  section 
of  the  Act  is  as  to  the  respective  crhninal  liabihties  of  the 
various  parties  who  participate  in  the  ''duping"  of  a 
film. 

The  making  of  a  negative  "dupe"  from  a  positive  print 
of  a  motion  picture,  when  made  for  the  purpose  of  profit 
in  any  form,  comes  within  this  section.     The  intent  to 

in  which  the  word  is  ordinarily  tory  prescribed.  In  other  words, 
employed  {Goodyear  Shoe  Mfg.  the  question  of  a  violation  of 
Co.  V.  Jackson,  112  Fed.  146,  the  covenant  not  to  infringe  the 
148),  then  no  effect  could  be  patented  article  is  cognizable 
given  to  the  word  "infringe"  in  the  state  court  in  the  same 
in  the  contract.  But  reading  manner  as  that  court  may  con- 
that  portion  <>i  the  contract,  strue  the  contractual  riglits  and 
under  which  the  defendant  agreed  obligations  arising  out  of  any 
not  to  "infringe,"  in  conjunction  negative  covenant  in  a  contract, 
with  the  other  portions  thereof  The  word  "infringe"  would  thus 
and  the  circumstances  disclosed  l)e  construed  to  mean  as  between 
upon  the  trial,  it  is  evident  tliat  the  parties  tliat  Comerma  would 
what  the  parties  meant  was  that  not  make  or  \h'.  inten'sted  in  any 
the  defendant  C-omerma  would  suc^h  article  as  is  described  in 
not  make  the  articles  specified  in  the  patents." 
these   patents   within   the   terri- 


WIl.l.lI   I,    INFRINGEMENTS  035 

derive  profit  need  not  be  expressly  shown,  but  may  lx» 
inferred  from  the  circumstances  of  the  case,  as  where 
the  defendant  is  engaged  in  the  motion  picture  busi- 
ness and  is  caught  making  a  negative  "dupe."  Here, 
clearly,  the  court  will  hold  that  the  defendant's  intent  as 
expressed  by  his  outward  acts,  was  to  derive  a  profit. 

The  Act  makes  a  distinction  between  the  person  who 
infringes  and  him  who  aids  or  abets  such  infringement. 
In  the  former  it  must  be  established  that  the  act  was  done 
willfully  and  for  profit.  In  the  latter  it  is  sufficient  to 
show  that  the  defendants  knowingly  and  willfully  aided 
or  abetted.  In  the  second  case  profit  is  entirely  elimi- 
nated. 

Every  one  who  participates  in  the  "duping"  process 
and  in  the  sale  or  other  disposition  of  the  "duped"  nega- 
tives and  positives  is  equally  liable  under  the  Act.  Thus 
the  photographer,  the  developer,  the  i)rinter,  distributor 
and  exhibitor  may  all  be  liable. 

The  criminal  and  civil  remedies  under  the  Act  are  not 
exclusive.  They  may  be  pursued  concurrently  if  desired, 
so  that  the  complainant  may  at  one  and  the  same  time 
move  for  his  injunction  pendente  lite,  secure  a  writ  of 
seizure  for  the  "duped"  films,  and  obtain  his  warrant 
for  the  arrest  of  the  infringer.^' 

«»/?.  V.  Baldoli  (Eng.)  (1913),  (lOOT,).  Timos,  Jan.  20.  The  de- 
Times,  Nov.  27.  See  for  con-  feiuiants  had  conspired  to  pirate 
viction  under  Knglish  Copyright  the  plaintiff's  music,  and  the  con- 
Act  for  knowingly  liaving  a  viction  was  had  on  the  theory  of 
positive  i>rint  of  a  lilin  in  the  jws-      conspiracy. 

session  of  d(>fen(lant  witli  intent  Some  of  the  states  have  enacted 

to  make  infringing  copies  tliere-  laws  making  it  a  crime  to  publicly 
from:     Hex    v.    Willclts    (Eng.)      perform  unpMished  works.     See 


636  THE    LAW    OF   MOTION    PICTURES 

Section  175. — Statute  of  limitations. 

Section  thirty-nine  of  the  Act  provides  that  no  criminal 
proceeding  shall  be  maintained  under  the  provisions  of 
the  Act,  unless  the  same  is  commenced  within  three  years 
after  the  cause  of  action  has  arisen. 

The  present  statute  does  not  contain  any  statute  of 
limitation  with  respect  to  civil  remedies.  Under  the 
statute  in  force  prior  to  the  present  Act  there  was  a  pro- 
vision limiting  the  commencement  of  actions  for  a  for- 
feiture or  penalty  within  two  years  after  the  cause  of 
action  had  arisen.'^" 

Section  176. — Construction  of  forfeiture  and  penalty 
clauses. 
Under  the  earlier  statutes,  all  the  copies  of  the  infrin- 
ger's work,  found  in  his  possession,  were  forfeited,  and 
in  addition  thereto,  he  was  liable  to  a  penalty,  half  of  the 
proceeds  going  to  the  plaintiff  and  half  to  the  United 
States  Government.  An  action  brought  under  these 
statutes  was  not  in  equity,  for  equity  does  not  enforce 
penalties  and  forfeitures,"'  but  was  in  the  nature  of  a  qui 

Penal  Laws  of  New  York,  §441,  tare  provisions  of  the  Copyright 

which  makes  it  a  misdemeanor  Act.     It  would  seem  that  in  the 

to  perfcjrrn  an  undedicated  work  absence    of    express    jurisdidion 

in  that  state.  conferred  by  ('ongress  such  courts 

'"  Revised  Statute,  4968.     Sec  will    not    enforce    penalties    or 

also:   Wheeler  v.   Cobfjcy   (1895),  forfeitures  (p.  4.'>5). 

70  Fed.  (C.  C.)  487.  Chapman  v.   Fern/   (1882),   12 

''Stevens   v.   (llndding    (1854),  I'Vd.  {C.  C.)  iVXV,  IJ.  ,S.  v.  Whita 

17   How.   447.     For  a  full   dis-  (1883),    17    Fed.    (C.    C.)    561; 

cussion  a.s  to  the  power  of  a  court  Fletcher  v.   New  Orleans   (1884), 

by  ecjuity  to  enforce  the  forfei-  20  Fed.  (C.  C.)  345;   Trow  City 


CONSTRUCTION  OF  FOKFEITUUE  AND  PENALTY  CLAUSES      iyM 


lam  action  wliicli  abated  with  the  death  of  the  defend- 
ant." It  was  civil  in  its  nature,'^  although  the  statute, 
being  highly  penal "'  called  for  a  strict  construction."'' 

So  that  when  the  alleged  wrongful  acts  were  committed 
by  defendant's  agent  without  his  knowledge  or  consent, 
he  was  not  liable,^^  nor  where  he  had  parted  with  possession 
of  the  uifringing  copies.'^ 

On  the  other  hand,  the  complainant  was  not  required 
to  allege  a  demand  and  refusal,^^  nor  was  it  material 
whether  or  not  he  was  damaged  by  the  infringement.'^' 

Under  the  1909  Act  most- of  these  fine  distinctions 
seem  to  have  been  done  away  with.  From  the  language 
of  the  statute  the  penalties  are  expressly  declared  to  be 
given  in  lieu  of  damages  and  not  to  be  regarded  as  penal- 
Dircdory   v.    Ctirtin    (1888),   36      Fed.  (C.  C.)  989;  100   Fed.  77; 


Fed.  (C.  C.)  829;  Lillard  v. 
Sun  PHnting  Co.  (1898),  87  Fed. 
(C.  C.)  213. 

^^Schrcibcr  v.  Sfmrpless  (1883), 
17  Fed.  (D.  C.)  589. 

"  Jounml  Pub.  Co.  v.  Drake 
(1!U2),  199  Fed.  (C.  C.  A.)  572. 
"The  notion  is  founded  upon  tluit 
implied  contract  which  every 
person  enters  into  with  the  state 
to  ol)serve  its  laws.  Skarm  v. 
U.  S.,  2  Paine,  300;  Fed.  Cas. 
No.  13,341.  .  .  .  Actions  for 
penalties  are  civil  actions  both 
in  form  and  in  substance,  ac- 
cording to  Hlackstone." 

^*  McDonald  v.  Hearst  (1900), 
95  Fed.  (C.  C.)  656. 

'oPalk    V.    Curlis    (1900),    98 


S710W  V.  Laird  (1900),  98  Fed. 
(C.  C.  A.)  813;  Bennett  v.  Carr 
(1899),  96  Fed.  (C.  C.  A.)  213; 
Boston  Traveler  Co.  v.  Purdy 
(1905),  137  Fed.  (C.  C.  A.)  717; 
Caliga  v.  Interocean  Newspaper 
Co.  (1907),  157  Fed.  (('.  ('.  A.) 
186;  atT'd  215  U.  8.  182;  30  Sup. 
Ct.  38. 

^^  Taylor  v.  Gilnuin  (1885),  24 
Fed.  (C.  C.)  632. 

^  Sarony  v.  Ehrich  (1886), 
28  Fed.  (C.  C.)  79. 

^^  liegeman  v.  Springer  (1901), 
110  Fe<I.  (C.  C.  A.)  374;  aflf'd 
189  U.  S.  505;  23  Sup.  Ct. 
849. 

^"^  Springer  v.  Folk  (1894),  59 
Fed.  (C.  C.  A.)  707. 


638  THE    LAW    OF  MOTION   PICTURES 

ties.^°    And  this  construction  has  been  placed  upon  the 
statute  in  Westermann  v.  Despatch.^^ 

This  recent  construction  of  the  statute  is  of  interest, 
for  if  the  action  is  not  construed  as  being  one  for  a  pen- 
alty, but  rather  one  for  liquidated  damages,  then  the 
Statute  of  Limitations  for  penalties  in  the  former  Copy- 
right Act  even  if  it  is  held  that  the  repealing  clause  of  the 

present  Act  has  not  repealed  this  provision,  does  not 
apply.^2 

Section  177. — Appeal. 

Section  thirty-eight  provides  that  the  orders,  judgments 
or  decrees  of  any  court  having  jurisdiction  of  the  actions, 
suits  or  proceedings  brought  under  the  Act  may  be  re- 
viewed on  appeal  or  writ  of  error,  in  the  manner  and  to 
the  extent  provided  by  law  for  the  review  of  cases  deter- 
mined in  said  courts  respectively. 

8"  Section  25,  Copyright  Act  of  alty  '  were  added  out  of  abundant 

1909.     See  also:  Brady  v.  Daly  caution,  for  under  such  a  situa- 

(1899),  175  U.  S.   148;  20  Sup.  tion  as  usually  exists  on  this  sul)- 

Ct.  62.  jcct    the    awarding    of   a    round 

*'  Westermann  v.  Despatch  sum  in  damages  is  no  more  a 
(1916),  233  Fed.  (C.  C.  A.)  009.  jK-nulty  when  the  damages  are 
Construing  §  25  of  the  1909  Act,  litiuidatcd  by  a  court  than  when 
Held  that  the  "in  lieu  of"  clause  they  arc  liquidated  by  a  con- 
providing  that  the  court  might  tract." 

in  its  discretion  allow  a  specified  ^^  For  cases  under  the  former 

sum    for   every    infringing    copy  statute  see:  Patterson  v.  Ogilvie 

or  jx-rformance  of  a  work  was  not  Pid>.  Co.  (1902),  119  Fed.  (C.  C.) 

to   be   regarded   as    imposing   a  451;    \V heeler  v.  Cnhbey   (1895), 

penalty.  70   Fed.    (C.   C.)   487;  see  also 

"It  woiild  Hoeni  thai  t,h(!  words  generally:  lirady  v.  D(di/  (1899), 

'  shall  n(;t  be  regarded  as  a  pen-  175  U.  S.  148;  20  Sup.  Ct.  148. 


CHAPTER  XV 

COPYRIGHT    (continued) 

Miscellaneous  Matters 

Sec.  178.  Return  of  copies  deposited. 

179.  Proliibitioii  of  importation  of  piratical  copies. 

180.  Ad  interim  protection. 

181.  Bankruptcy— Title  in  trustee. 

182.  Selling  secondhand  copies. 

183.  Taxability. 

184.  Music  in  tlieatrcs. 

185.  Co-authorship. 

186.  Employer  and  employe. 

187.  Restraint  of  trade— Price  fixing— MonojMjly. 

Section  178.— Return  of  copies  deposited. 

Section  sixty  of  the  Act  provides  tliat  any  works  de- 
l)()sit(Ml  pursuant  to  the  Act  and  not  disposed  of  in  ac- 
cordance therewith  may  in  the  iliscretion  t)f  the  Librarian 
of  Congi-ess  and  Register  of  Copyrights  be  destroyed 
after  an  opportunity  lias  l)een  given  to  tlie  author,  copy- 
right proprietor  or  other  lawful  claimant  to  claim  and 
remove  the  same. 

The  Register  of  Copyrights  has  also  permitted  the 
withdrawal  of  one  copy  of  published  works  deposited  with 
him,  where  the  claimant  gives  some  valid  reason  why  it 
is  necessary  for  him  to  have  such  copy  removed. 

039 


040  THE    LAW   OF   MOTION    PICTURES 

Section    179. — Prohibition   of   importation   of  piratical 
copies. 

Section  thirty  of  the  Act  expressly  prohibits  the  im- 
portation into  the  United  States  of  any  piratical  copies 
of  a  work  in  which  there  is  subsisting  a  United  States 
copyright. 

Where  a  film  has  been  ''duped"  and  an  attempt  is 
made  to  bring  into  this  country  ''duped"  copies  of  the 
film,  the  copyright  proprietor  may  prevent  the  entry 
of  such  films  under  Sections  thirty-two  and  thirty-three 
of  the  Act. 

Where,  however,  the  motion  pictm'e  for  which  entry  is 
sought  is  merely  an  infringement  of  the  copyright  in  a 
work,  which  itself  is  not  a  motion  picture,  the  cop^Tight 
proprietor  may  not  avail  himself  of  the  benefit  of  this 
section.^ 

1  Riding  of  the  Treasury  Dc-  virtue  of  paragraph  D  of  §  1  of 
partment  dated  December  21 ,  1912,  the  Copyright  Act  have  the  ex- 
on  the  importation  of  the  motion  elusive  right  to  make  all  moving 
picture  "The  Miracle."  "The  pictures  representing  this  dra- 
Department  is  in  receipt  of  your  matic  composition;  that  the  Mir- 
Icttcr  of  the  18tii  instant  in  rcla-  acle  Company  by  certain  con- 
tion  to  the  importation  at  New  tra(;ts  have  ac^iuired  the  sole 
York  on  the  9th  idem  of  a  moving  rights  in  the  said  dramatic  corn- 
picture  film  which  is  claimed  to  i);)sition  and  also  the  moving 
be  a  reproduction  of  a  drama  i)icturc  right  therein  for  the 
entitled  'The  Minutlc'  United  States,  and  that  the  film 

"  It  is  rcpresent(!d  that  Messrs.  belonging  to  the  Miracle  C/om- 

]']d.  Bote  and  (1.  liock  of  Herlin,  pany  was  advertised  on  theSthof 

Germany,  are  the  proprietors  of  this   month   to   be   exhibited   in 

the    copyright    of    the    dramatic  London,    England,    on    the    21st 

composition    entitled    'The  Mir-  instant. 

acle';    that   Bote  and   Bock   by  "  I   inclose  herewith   for  your 


AD    IXTERIM    PROTECTION 


641 


Section  180. — Ad  interim  protection. 

Sections    twenty-one    and    twenty-two    providing    for 
ad  interim  protection  of  works  published  abroad  in  the 


iiiforiiKition  a  copy  of  tlio  De- 
IKirttueiit's  letter  of  tlie  IStli 
instant  to  the  collector  of  customs 
at  New  York  authorizing  the 
release  of  tlie  film  in  (luestion. 
As  it  is  not  sliown  cither  in  the 
collector's  letter  or  in  your  com- 
munication that  the  film  imported 
is  a  piratical  copy,  the  Depart- 
ment knows  of  no  provision  of 
law  which  would  authorize  the 
exclusion  of  the  same  from  entry 
as  §  30  of  the  Copyright  Act  pro- 
hibits the  importation  only  of 
articles  hearing  a  false  notice  of 
copyright  when  there  is  no  exist- 
ing copyright  thereon  in  the 
United  States  or  of  piratical  cop- 
ies of  any  work  copyrighted  in 
the  United  States. 

"  Therefore  the  cjuestion  of 
whether  the  imported  film  is  an 
infringement  of  tlie  dramatic 
composition  or  of  the  moving 
picture  film  advertised  to  he 
exhibited  in  London  on  the  21st 
instant  is  one  for  the  determina- 
tion of  tlie  courts  after  the  film 
IS  released  from  customs  custody. 
"  Respectfully, 

"  J.    F.   CUHTIS, 

"  Assistant  Secretary." 


Letter  referred  to  in  the  above 
ruling: — 

"December  IS,  1917. 
"The  CollecUjr  of  Customs, 

"  New  York,  N.Y. 
"Sir: 

"The  Department  is  in  receipt 
of  your  letter  of  the  18th  instant, 
reporting  in  relation  to  an  im- 
portation of  a  moving  picture 
film  made  at  your  port  on  the 
9th  instant,  entry  No.  332691, 
and  which  is  claimed  to  be  a  re- 
production of  a  drama  entitled 
'The  Miracle,'  of  which  Mr. 
A.  H.  Woods  of  New  York  City 
is  the  American  copyright  pro- 
prietor. 

"It  appears  that  the  film  was 
duly  entered  and  relea.><ed,  but 
that  the  same  has  been  returned 
to  you  by  the  New  York  Film 
Company,  pending  the  determi- 
nation of  the  matter  by  the  De- 
partment, and  that  Mr.  Woods 
claims  the  fdm  was  imported 
in  violation  of  paragraph  D  of 
section  1  of  the  Act  of  March  4, 
1909,  as  being  a  reproduction  of 
the  drama  entitled  'The  Mir- 
acle' as  exhibited  in  London. 

"Paragraph  D  of  section  1  of 


642 


THE    LAW    OF   MOTION    PICTURES 


English  language  before  publication  in  this  country  have 
no  application  to  motion  pictures,  but  refer  solely  to  books. 


the  Copyright  Act  merely  de- 
fines the  exclusive  rights  given 
to  the  copyright  proprietor  in 
dramatic  works. 

"Under  section  30  of  the  same 
Act  the  importation  into  the 
United  States  of  any  article 
bearing  a  false  notice  of  copy- 
right, when  there  is  no  existing 
copyright  thereon  in  the  United 
States  or  of  any  piratical  copies 
of  any  work  copyrighted  in  the 
United  States,  is  prohibited,  and 
as  it  is  not  shown  or  claimed  that 
the  film  in  question  is  a  prohibited 
importation  under  this  provision 
of  law,  the  Department  is  of  the 
opinion  that  the  same  should  be 
released  to  the  importer.  You 
will  be  governed  accordingly. 

"Respectfully, 
"(signed)   F.  M.  PIalstead, 
"Chief,  Division  of  Customs." 
See  the  fulloiving  treasury  ruling 
as    to    what    comtituics    piratical 
copies  of  a  film:  (T.  D.  33258.) 

Copyright— Films— Moving      pic- 
tures— Piratical  copies 

Regulalious  governing  the  im- 
portation of  in()vinK-l)icture 
films  under  the  copyright 
act    of    Marcii     1,    1909.— 


— T.    D.  31754  of  July   17, 
1911,  modified. 

Treasury  Department, 

March  10,  1913. 
To  collectors  and  other  officers  of 
the  customs: 

Attention  is  invited  to  section 
30  of  the  copyright  act  of  March 
4,  1909,  as  follows: 

That  the  importation  into  the 
United  States  of  any  article 
bearing  a  false  notice  of  copyright 
when  there  is  no  existing  copy- 
right thereon  in  the  United  States, 
or  of  any  piratical  copies  of  any 
work  copyrighted  in  the  United 
States,  is  prohibited. 

The  following  regulations  gov- 
erning the  importation  of  moving 
picture  films  arc  hereby  promul- 
gated for  the  guidance  of  officers 
of  the  customs: 

1.  A  "piratical  copy"  of  a 
film  is  defined  as  a  film  which 
constitutes  either  an  actual  copy 
or  a  substantial  reproduction  of  a 
legally  ('ojiyrighted  film  produced 
and  imported  in  contravention 
of  the  rigiits  of  the  coin-right 
proprietor. 

2.  Collectors  will  adniit  to 
entry  imported  films  conc'crning 
which   either    (a)    adverse   copy- 


BANKRUPTCY — TITLK    IN    TRUSTEE 


643 


Section  181. — Bankruptcy — Title  in  trustee. 

The  trustee  in  baiikrui)tcy  ar(iuiros  title  to  the  copy- 
rights owned  by  the  bankrupt  proprietor,  and  he  may 


right^s  arc  claiincd  by  parties  in- 
terested, or  (b)  an  infringement 
only  is  claimed  by  a  copyriglit 
proprietor  other  tlian  the  im- 
porter. In  such  cases  the  copy- 
right claimants  will  be  remitted 
to  their  rights  at  law  or  in  equity. 

3.  Collectors  will  not  permit 
entry  of  imported  films  concern- 
ing which  either  (a)  representa- 
tions arc  made  that  they  are 
piratical  copies  and  such  represen- 
tations are  not  denied  by  the 
importers,  or  (b)  if  the  collector 
is  satisfied  they  do,  in  fact,  con- 
stitute piratical  copies  as  above 
defined. 

4.  Collectors  will  detain  films 
covered  by  the  preceding  regula- 
tion and  report  the  facts  to  the 
department  for  instructions. 

5.  If  the  collector  is  not  satis- 
fied that  an  imported  film  is  a 
piratical  copy,  and  the  imjwrter 
files  an  affidavit  denying  that  it  is 
in  fact  such  a  piratical  copy,  and 
alleging  that  the  detention  of  tlie 
film  will  result  in  a  material  de- 
preciation of  its  value  or  loss  or 
damage  to  him,  tlie  film  will  be 
admitted  to  entry,  unless  a  writ- 
ten demand   for   its  exclusion  is 


filed  by  the  copyright  proprietor 
or  other  party  in  interest,  setting 
forth  that  the  imported  film  is  a 
piratical  copy  of  a  film  legally 
copyrighted  in  the  United  States, 
and  unless  there  is  also  filed  with 
the  collector  a  good  and  sufficient 
bond  conditioned  to  hold  the 
importer  or  owner  of  such  film 
harmless  from  any  loss  or  dam- 
age resulting  from  its  detention 
in  the  event  that  the  same  is 
held  by  the  department  not  to 
be  prohibited  from  importation 
under  section  30. 

6.  Upon  the  filing  of  such  de- 
mand and  bond  the  collector 
will  cause  the  film  to  be  detained, 
and  will  fix  a  time  at  which  the 
parties  in  interest  may  submit 
evidence  t«  substantiate  their 
respective  claims,  which  evidence 
shall  be  reduced  to  writing  at  the 
ex|xmse  of  the  parties  in  interest 
and  transmitted  by  the  collector 
to  the  department,  with  such 
report  and  nn'oinmendation  as 
he  may  deem  proiM>r. 

7.  Xo  film  will  be  presumetl  to 
be  prohil)ite<l  from  entry  as  a 
piratical  copy  under  said  act, 
and  the  burden  of  proof  that  any 


644 


THE    LAW   OF   MOTION   PICTURES 


exercise  dominion  thereto  either  by  way  of  a  sale  or  other- 
wise. But  whether  or  not  he  is  vested  with  title  in 
the  common-law  rights  of  an  unpublished  work,  is  open 
to  question. - 

A  sheriff,  levying  upon  the  copyrighted  property  and 
thereafter  selling  the  same,  does  not  sell  the  copyright, 
as  that  still  remains  in  the  judgment  debtor,  and  he  has 
not  been  divested  therefrom.^  All  that  the  Sheriff  sells 
film  is  in  fact  a  piratical  copy      Plaintiff,  the  author  of  a  book, 


will  be  upon  the  party  making 
such  claim. 

8.  If  the  film  is  held  by  the 
department  to  be  a  piratical  copy, 
its  seizure  and  forfeiture  will  be 
directed  in  accordance  with  sec- 
tion 32  of  the  copyright  act, 
and  the  bond  will  be  returned  to 
the  copyright  proprietor,  but  if 
not  so  held,  the  collector  will  be 
directed  to  release  the  film  and 
transmit  the  bond  to  the  importer. 

9.  Regulations  contained  in  T. 
D.  imrA  of  July  17,  1911,  so  far 
as  they  relate  to  moving  picture 
films,  are  hereby  modified  ac- 
cordingly. 

James  F.  Cuutis,  Assistant  Secre- 
tary. 

2  Sec:  hi  re  McDonmll  (1900), 
101  Fed.  (D.  C.)  2:}9;  Gillclt  v. 
Bate  (18«1),  SO  N.  Y.  87;  In  re 
Dann  (1904),  129  Vvd  (D.  C.) 
495. 

'  Patterson  v.  Ogilvw  Pvh.  Co. 
(1902),    119    Fed.    (C.   C.)   451. 


became  financially  embarrassed; 
a  judgment  was  secured  against 
him,  and  upon  execution  the 
sheets  and  plates  of  the  book  were 
levied  on  and  sold  by  the  sheriff. 
Defendant  purchased  the  plates 
from  some  one  to  whom  they 
had  passed  from  the  purchaser 
at  the  sheriif's  sale.  The  court 
said: — 

"The  copyright  was  not  sold, 
and  complainant  has  not  lost 
his  right  to  enforce  it  because  he 
failed  to  prevent  the  sale  of  the 
plates.  They  were  mere  pieces 
of  metal,  which  became  the 
property  of  the  purchascM',  l)ut 
gave  him  no  right  to  publisli  tlie 
copyrighted  work  whicli  could 
be  printed  from  tliein.  Com- 
phiinant  did  not  ahandou  liis 
copyright  l)y  failing  to  buy  tlicm 
in,  and  is  not  estopped  tliereby 
from  enforcing  his  statutory 
riglits." 


BANKRUPTCY — TITI.K    IN"   TRUSTEE  G45 

in  such  oaso  is  tho  physical  work  itself,  not  the  intanpble 
and  incorporeal  eopyrif^ht,  and  the  original  proprietor 
may  in  his  own  name  enjoin  subsequent  infringers.^ 

The  trustee  in  bankruptcy  does  not  accjuire  title  to  a 
license  agreement  for  the  use  of  a  copjTighted  work,  as 
that  kind  of  an  agreement  is  strictly  personal  in  its  na- 
ture, and  is  ipso  facto  abrogated  by  the  adjudication  of 
bankruptcy,  unless  a  contrary  intention  is  therein  ex- 
pressly stipulated. 

In  a  case  where  a  publishing  firm  had  become  bankrupt 
and  the  trustee  attempted  to  sell  its  rights,  the  learned 
Referee,  awarding  the  rights  to  the  author,  said: 

"...  I  am  of  the  opinion  that  the  claimant  is  en- 
titled to  the  copyrights  in  question,  because  I  must  find 
on  the  facts  and  law  that  the  contract  .was  a  personal 
engagement  between  author  and  publisher,  involving 
trust  and  confidence  which  cannot  be  assigned  or  dele- 
gated to  another  without  the  author's  consent."  ^ 

*  Wilder    V.    Kent    (1883),    15  tweon  an  author  and  publisher. 

Fed.    (C.    C.)    217.      Where    a  On  the  haiikruptey  of  the  pul>- 

copyrighted   map   or   its   copper  lisher  tlic  author  attempted   to 

plate  are  seized    by   tlie   sheriff  ol)tain    a    re-a.ssignment    of    the 

on  execution,  the  purchaser  of  tlie  copyright.     The    Six>cial    Coni- 

same  acquires  no  right  to  make  mission  held  tliat  he  could  do  so: 

copies  thereof.  "  It   is   true   that   the   author 

See  also:  Stevens  v.  Gladding  rescrx-ed  her  own  right  to  a.ssign 

(18.54),  17  How.  447;  Sterens  v.  her  royalties,   hut  .she   also   ex- 

Cndy  (18.V2),  14  How.  528;  Pat-  pressly    resers'ed    to   herself    the 

terson  v.  Ogilrie  Pub.  Co.  (1902),  right  to  object  to  an  jvssignment 

119  Fed.  (C.  C.)  451.  on  the  part  of  the  corjxiration." 

* /n  re    D.  II.  Mcliridc  A  Co.  '6cqi\\^o:  Arkansas  Smelting  Co. 

(19m),i:r2Fed.  (1).C'.)285.    The  v.  Belden  (1S8S),  127  U.  S.  379, 

contract    involved   was  one    be-  8    Sup.    Ct.    1308;    Bancroft    v. 


646  THE    LAW    OF  MOTION   PICTURES 

But  where  there  was  no  mere  Hcense  but  an  assignment, 
or  a  Hcense  which  amounted  in  law  to  an  assignment, 
the  trustee  became  legally  vested  with  title  on  the  bank- 
ruptcy of  such  assignee  or  licensee,  and  could  not  be 
compelled  to  turn  over  the  copyright  to  the  assignor  or 
licensor.^ 

Section  182. — Selling  secondhand  copies. 

In  view  of  the  practice  of  buying  up  old  motion  pictures 
and  again  distributing  them,  it  is  of  interest  to  note  that 
these  second-hand  copies  even  though  copyrighted,  may 
lawfully  be  touched  up  and  restored  as  closely  as  possible 
to  their  original  condition.  The  purchaser  may  also 
exhibit  or  cause  the  same  to  be  exhibited.  He  may  not, 
however,  make  copies  of  the  film,  as  that  would  violate 
the  rights  of  the  copyright"  proprietor  of  such  film. 

While  there  is  no  reported  decision  on  this  proposition 
directly  involving  motion  pictures,  the  case  of  Doan  v. 

<Scn6ner  (1896),72Fed.  (C.  C.  A.)  elusion   arrived    at.     Slevem   v. 

988.  Benning  (Eiig.)  (1854),  1  Kay  & 

So    that    a    license    under    a  Johnson,  168;  aff'd  6  Do  (i.  M. 

patent  right  is  held  personal  to  &    G.    223;    Hole    v.    Bradhxmj 

the  licensee  and  does  not  pass  to  (Eng.)    (1879),    12    Chan.    Div. 

a   receiver   or  administrator   by  886;    Reade    v.    BcnUcij    iVjWg.) 

operation  of  law.    Oliver  v.  Rum-  (1858),  4  Kay  &  .Johnson,  656. 
iord    Cliern.    Works    (188.3),    109  • /n    re    Ilowley    Dresser    Co. 

U.  S.  75;  3  Sup.  Ct.  61;  Water-  (1904),  132  Fed.   (D.  C.)   1002. 

man  v.  Sliijunan  (1893),  55  Fed.  Tlu;  copyright  was  li(>ld  to  go  to 

(C.  C.  A.)  982.  the  trustet;  in  l)!Uikruptcy. 

Also  dn'ffdh  v.  Tower  Pvh.  Co.  "The  tjucstion  always  is  in 
(Eng.)  (1897),  1  ('hancery,  21,  such  cases  whether  the  agree- 
when;  the  identical  (juestion  was  inent  is  merely  an  arrangement 
passed   on,   and    the   siuhc    oon-  to   publish   under   the   copyriglit 


SELLING    SECONDHAND    COPIES 


047 


American  Book  Co.,'  which  concerned  itself  with  tiic  dc- 
fendant's  right  to  rebind  old  books  in  imitation  (jf  tin; 
originals,  is  so  closely  analogous  that  it  may  be  said  to 

apply. 

Tliis  would  indicate  that  the  buyer  of  a  film  could  re- 
store the  original  title,  both  in  text  and  design,  and  use 
the  original  advertisements  in  so  far  as  no  attemi)t  was 
made  to  mislead  the  public  into  believing  such  motion 
l)ictures  to  be  a  first  issue,  or  to  bo  exhibited  by  the  copy- 
right proprietor.^ 


or  an  actual  transfer  of  the  copy- 
right." 

In  re  Grant  Richards  (Eng.) 
(1907),  2  K.  B.  33.  Where  the 
publisher  held  the  copyriglit  and 
agreed  to  pay  royalties  it  was 
held  tluvt  tlie  copyright  passed 
to  the  trustee  in  bankruptcy. 

T  Doan  V.  Ain.  Book  Co.  (1901), 
105  Fed.  ((\  C.  A.)  772.  De- 
fendant bought  up  second-hand 
copies  of  phiintiff's  copyrighted 
books,  and  rebound  them,  mak- 
ing up  new  covers  for  tliat  pur- 
pose in  exact  imitation  of  the 
originals.  Held  that  this  was  not 
a  violation  of  the  copyright. 
"The  sale  of  them  by  the  ajipellee 
(plaint itT)  carried  with  it  the  or- 
dinary incidcnt.s  of  ownership 
in  personal  proix^rty,  including  the 
right  of  alienation  {Harrison  v. 
Maynard,  01  Fed.  0S9)  and  the 
appellants  purchasing  them  had 


the  right  to  resell  them.  .  .  . 
We  think  the  right  of  repair 
with  respect  to  a  copyrighted 
book  sold  to  the  extent  to  which 
that  right  is  here  claimetl,  may  not 
properly  be  denied.  .  .  .  What 
was  done  was  merely  the  restora- 
tion of  the  books  to  their  original 
condition  when  sold  by  the  ap- 
pellee or  so  nearly  so  as  could  be 
done  ...  a  right  of  ownership 
in  the  book  carries  with  it  and 
includes  the  right  to  maintain 
the  book  as  nearly  as  possible 
in  its  original  condition,  so  far. 
at  least,  as  the  cover  and  bind- 
ing of  the  book  is  concerned." 

See  also:  Dodd  v.  Smith  (1891), 
144  Pa.  St.  340;  22  Atl.  710;  Har- 
rison v.  Maynard  Merrill  li'  Co. 
(1894),  Gl  Fed.  (C.  C.  A.)  G89; 
Henry  Hill  Puhl.  Co.  v.  Smythe 
(1886),  27  Fed.  (C.  C.)  914. 

»  Where  old  books  were  passed 


648 


THE    LAW   OF   MOTION    PICTURES 


Where  a  secondhand  motion  picture  projecting  ma- 
chine was  sold,  no  false  representations  as  to  its  origin 
being  made,  it  was  held  that  such  sale  was  lawful  under 
the  original  name  of  the  machine.^ 

Section  183. — Taxability. 

Copyright  may  not  be  taxed.  It  is  a  species  of  intangi- 
ble property  which  is  exempt  from  taxation;  for  to  tax 
it  would  be  to  impose  a  check  upon  that  which  is  avowedly 
sought  to  be  encouraged.  ^° 


off  as  new,  it  was  held  to  be 
unfair  competition  in:  Doan  v. 
American  Book  Co.  (1901),  105 
Fed.  (C.  C.  A.)  772;  Bureau  of 
Nat'l  Literature  v.  Sells  (1914), 
211  Fed.  (D.  C.)  379;  Ginn  v. 
Apollo  (1914),  215  Fed.  (D.  C.) 
772;  Kipling  v.  Putnam  (1903), 
120  Fed.  (C.  C.  A.)  631. 

9  Vitascope  Co.  v.  U.  S.  Phono- 
graph Co.  (1897),  83  Fed.  (C.  C.) 
30.  Where  plaintid  had  con- 
tracted with  Edison  for  the  man- 
ufacture by  the  latter  of  certain 
motion  picture  machines  and 
after  his  faihire  to  pay  for  some 
of  them,  Edison  sold  them  to  a 
third  party  under  the  name  which 
had  been  given  them  "Edison 
Vitascopes,"  plaintiff  could  not 
enjoin  the  tliird  party  from  ofTer- 
iiig  them  for  sale  under  that 
name,  as  tliat  wius  their  name, 
and  no  false  representation  was 
made  to  the  public. 


It  is  to  be  noted  that  no  right 
to  the  use  of  the  name  had  been 
shown  to  vest  exclusively  in  the 
plaintiff. 

^'^  People  ex  rel.  Johnson  v. 
Roberts  (1899),  159  N.  Y.  701;  53 
N.  E.  685.  The  same  rule  with 
respect  to  patent  rights  is  laid 
down  in  People  ex  rel.  Edison 
V.  Assessors  (1898),  156  N.  Y. 
417;  51  N.  E.  269. 

People  ex  rel.  United  States 
Aluminum  Co.  v.  Knight  (1903), 
174  N.  Y.  475;  67  N.  E.  65.  A 
corporation  may  be  taxed  by  the 
state  even  though  its  jiroperty 
consists  of  exempt  letters  patent, 
bonds   or   copyrights. 

".  .  .  .  But  they  involve  the 
principle  that  while  a  tax  cannot 
be  assessed  upon  property  that  is 
exempt  l)y  A(;t  of  (!ongress,  it 
may  be  imposed  upon  the  fran- 
chise of  a  corporation  to  which 
such    exempt    projMirty    belongs 


MUSIC   IN   THEATRES 


G49 


Section  184. — Music  in  theatres. 

'riic  owner  or  lessee  of  u  theatre  is  undoubtedly  liable 
for  unauthorized  and  unlicensed  performances  of  musical 
compositions  j^ivcn  in  his  theatre.  This  follows  logically 
from  the  decisions  in  Herbert  v.  Shanley  and  Church  v. 
Illlliard  ''  decided  in  1917  by  the  United  States  Supreme 
Court. 

In  each  of  these  cases  the  plaintiff  had  brought  an 
action  for  an  injunction  and  damages  on  the  ground  that 
his  music  had  been  unlau-fully  performed  "for  profit," 
in  the  one  case  at  a  popular  restaurant,  in  the  other  ca.se 
at  a  hotel.  The  performance  in  each  case  had  been  of  the 
kind  known  as  a  "cabaret." 


aiKJ  may  be  measurod  by  the 
value  thereof.  Tlie  princij)le 
applies  with  the  same  force  1o 
ptitoiit  rights  as  to  United  States 
bcjiuls,  both  of  which  are  exempt 
from  taxation.  There  is  no  dis- 
tinction in  tliis  respect  between 
United  States  bonds,  patent  rights 
and   copyrights." 

Ilurpir  V.  Donohiie  (1905),  144 
Fed.  (C.  C:.)  491.  "Such  literary 
prop<Tty  is  not  subject  either  to 
execution  or  taxation,  because 
this  might  include  a  forced  sale, 
tlie  very  thing  the  owner  has  a 
right  U)  prevent." 

"  Herbert  v.  ShatUey  To.  (1917), 
242  U.  S.  591;  37  Sup.  C't.  2:^2; 
Church  V.  milmrd  (1917),  242 
U.  S.  591;  37  Sup.  Ct.  2;i2. 


For  an  Engli.sh  case  taking  the 
same  position  as  the  Supreme 
Court  see  Sarpy  v.  Holland  (Eng.) 
(1908),  L.  R.  2  Ch.  198;  77  L.  J. 
Ch.  G37;  99  L.  T.  317;  24 T.  L.  R. 
GOO. 

See  the  following  English  cases 
where  the  owner  of  a  theatre 
was  required  to  obtain  a  music 
license  in  addition  to  his  tlieutri- 
cal  license  if  the  music  was  more 
than  a  subsidiary  part  of  the 
entertainment.  Gregory  v.  Tarer- 
nor  (1833),  6  C.  &  P.  280;  Hall 
V.  Green  (1853),  9  Exch.  247; 
QiKujlieni  v.  Mallhexcs  (1865), 
G  B.  &  S.  474;  Syers  v.  Conquest 
(1873),  37  J.  P.  342;  Fay  v. 
lirioncll  (1883),  Cab.  &  El. 
112. 


650  THE   LAW   OF   MOTION    PICTURES 

Defendants  claimed  that  the  performance  was  not 
''for  profit"  within  the  meaning  of  Section  one,  sub- 
division (e)  of  the  Copyright  Act,  as  no  admission  was 
charged  at  the  door,  the  only  revenue  exacted  being  for 
the  refreshments  served.  It  was  held  that  this  plea  was 
untenable,  for,  as  Mr.  Justice  Holmes  pointed  out:  "If 
the  rights  under  the  copyright  are  infringed  only  by  a 
performance  where  money  is  taken  at  the  door,  they  are 
very  imperfectly  protected.  Performances  not  different 
in  kind  from  those  of  the  defendants  could  be  given  that 
might  compete  with  and  even  destroy  the  success  of  the 
monopoly  that  the  law  intends  the  plaintiffs  to  have.  It 
is  enough  that  there  is  no  need  to  construe  the  statute 
so  narrowly.  The  defendant's  performances  are  not 
eleemosynary.  They  are  part  of  a  total  for  which  the 
public  pays,  and  the  fact  that  the  price  of  the  whole  is 
attributed  to  a  particular  item  which  those  present  are 
expected  to  order  is  not  important.  It  is  true  that  the 
music  is  not  the  sole  object,  but  neither  is  the  food,  which 
probably  could  be  got  cheaper  elsewhere.  The  object  is 
a  repast  in  surroundings  that  to  people  having  limited 
powers  of  conversation  or  disliking  the  rival  noise,  give 
a  luxurious  pleasure  not  to  be  had  from  eating  a  silent 
meal.  If  music  did  not  pay  it  would  be  given  up.  If  it 
pays,  it  pays  out  of  the  pu])lic's  pocket.  \Aniether  it  pays 
or  not,  the  purpose  of  employing  it  is  profit  and  that  is 
enough." 

In  the  case  of  a  motion  picture  theatre  where  admission 
is  charged  at  Hie  door,  there  can  l)e  no  d(\f(Mise  on  that 
score,  for  admittedly  tlu;  entire  p(Tformanc(i  is  for  profit 
and  gain,  a  profit  which  is  ()l)tained  by  direct  methods. 


MUSK"    IN   THEATRES  651 

The  music  which  is  phived  to  accompany  the  exhibi- 
tion of  tlu^  pictures  is  as  much  a  part  of  the  entertainment 
as  the  pictures  themselves. 

Intleed  the  tendency  has  been  to  elaborate  the  nmsical 
l)rogram,  and  in  many  instances  special  music  has  been 
composed  for  feature  pictures.  Under  these  circum- 
stances it  is  difficult  to  see  how  the  theatre  proprietor 
can  escap(^  lial)ility  when  he  performs  music  without  a 
license  from  tlie  copyright  owners. 

In  Huhhell  v.  Royal  Pastime  Amusement  Co.  })laintifTs, 
owners  of  the  Coj)yright,  sought  to  restrain  defendant 
from  further  performances  of  their  music  in  its  theatre. 
On  motion  to  dismiss  the  bill  of  complaint  the  point 
was  made  that  inasmuch  as  the  bill  failed  to  allege  that 
the  musical  comj^ositions  involved  were  written  for  the 
purpose  of  public  i)erformance  for  profit,  defendant  was 
at  liberty  to  perform  the  same.  In  denying  the  motion 
the  court  held  that  when  the  composer  took  the  proper 
steps  to  secure  copyright  in  his  work,  it  might  fairly  l)e 
inf(^rred  that  copyright  was  secured  to  obtain  all  the  rights 
granted  b\'  the  statute  to  the  copyright  proprietor,  in- 
cluding the  exclusive  right  to  perform  the  work  for  profit. '- 

'■-  Ilnbfxll     V.     Roi/dl     Pdstiinc  lunomlecl.     The  sole  point  urged 

.4 mfm/m/iK'o.  {l<)17),iMiiy2(lth,  is  tluit  the  Ijill  is  defective   Ih'- 

District  Court  U.  S.,  S.  D.  New  cause  it  fails  to  allege  that  the 

York.  musical     compositions     involved 

Mayer,  .1:  "This  is  a  motion  to  were  written  for  the  purjxjse  of 
dismiss  the  bill  on  the  ground  pul)lic  jiorformance  for  jjrofit. 
tliat  the  facts  stated  therein  are  "As  a  mere  matter  of  pleading 
insuflicient  to  constitute  a  cause  I  am  inclined  to  think  that  when 
of  action  under  the  Cojiyright  tlie  comi)oser  conn)oses  his  coin- 
Act    of     March    4th,     lUOl),    lus  jwjsition  with  an  unlimitcii  copy- 


652  THE    LAW   OF   MOTION    PICTURES 

This  rule  as  to  public  performance  for  profit  applies 
with  equal  force  to  performances  rendered  by  mechanical 
reproduction ;  for  the  language  in  Section  one,  subdivision 
(e)  governing  the  compulsory  hcensing  of  musical  com- 
positions for  mechanical  purposes,  expHcitly  excepts 
from  its  provisions  public  performance  for  profit.  The 
language  of  the  last  paragraph  of  Section  one  permits 
the  use  of  coin-operated  machines,  but  again  prohibits 
such  use  where  an  admission  fee  is  charged  to  the  place 
where  the  machines  are  operated. 

It  is  plainly  the  intent  of  Congress  to  prohibit  the 
performance  of  a  musical  composition  for  profit  without 
the  consent  of  the  owner  of  the  copyright. 

The  rule  of  Hability  for  unlicensed  public  performance 
for  profit  of  copyrighted  music  is  the  same  as  that  for  the 
infringement  of  any  other  copyrighted  work." 

right  notice  it  may  fairly  be  in-  and  the  reading  of  the  statute, 

ferred  that  he  had  written  the  See  Tyrrell  v.  The  Mayor  (1899), 

work  for  the  purpose  of  securing  159  N.  Y.  239;  53  N.  E.  1111,  as 

all   the   rights   attainahh;   under  to  the  rules  of  construction  where 

the  Copyright  Act  including  tlie  punctuation  is  involved.     If  the 

exclusive  right  publicly  to   per-  semi-colon  is  not  inserted  at  the 

form  it  for  profit.  place  above  indicated,  subdivision 

"But    the    controversy    goes  e  of  section  1  does  not  seem  to 

deeper   than   a   mere   matter   of  make   sense. 
I)l('ading,  for  I  am  entirely  satis-  "Eliminating    the    semi-colon 

fied  that  a  semi-colon  should  pre-  the    most,    however,    that    the 

cede  the  words  'and  for  the  pur-  section  amounts  to  is  a  protec- 

posc  of  a  public  performance  for  tion   in   favor   of   those   persons 

profit.'     This  is   bonu!  out  by  a  who  do  not  perform  jniblicly  for 

reading  of  the  committe(!  reports  profit  the  nuisi(tal  (tomposition — 

"  See  Section  163. 


RESTRAINT   OF   TRADE — PRICE    FIXING  —  MONOPOLY      053 


Section  185. — Co-authorship. 

Tills  subject  lias  been  treated  in  detail  in  Sections  9 
and  10,  to  which  the  reader  is  referred. 

Section  186. — Employer  and  employe. 

For  a  discussion  of  the  rights  of  the  above  parties  the 
reader  is  referred  to  Section  8. 

Section   187.— Restraint    of    trade— Price    fixing— Mo- 
nopoly. 
The  reader  is  referred  to  Sections  133  and  134  for  a 
detailed  discussion  of  the  law  on  this  subject. 


as  ill  the  case  of  street  iiurudes, 
school,  educational  or  similar 
public  occasions  and  cxliil)itions. 
"Putting  the  ma.tter  another 
way,  the  contention  of  the  de- 
fendant is  that  the  person  who 
becomes  entitled  to  the  copy- 
right by  complying  with  the  act 
must  state  what  was  in  his  mind 
at  the  time  that  he  obtained  his 
copyright.  I  am  unable  to  see 
any  justification  for  this  view 
because  the  purpose  or  mental 


attitude  of  the  composer  is  im- 
material. The  procedure  is  that 
he  complies  with  the  act  antl  as  a 
result  of  that  compliance  certain 
benefits  follow  by  virtue  of  the 
statute. 

"The  subject  could  be  further 
and  somewhat  elaborately  de- 
veloped, but  I  see  no  occasion  so 
U)  do  upon  this  motion,  as  the 
jxiint  which  defendant  makes 
will  i)e  preserved  should  a  trial 
be  had.     Motion  denied." 


CHAPTER  XVI 

COPYRIGHT    (continued) 

British,  Colonial  and  International  Copyright 

Sec.  188.  Copyright  in  United  Kingdom  and  Protectorates. 

189.  Copyright  in  Newfoundland. 

190.  Copyright  in  Commonwealth  of  Australia. 

191.  Copyright  in  Dominion  of  New  Zealand. 

192.  Copyright  in  Union  of  South  Africa. 

193.  Copyright  in  Dominion  of  Canada. 

194.  International  Copyright. 

Section  188. — Copyright  in  United  Kingdom  and  Pro- 
tectorates. 
Under  the  Enghsh  Copyright  Act  of  1911,  copyright 
will  subsist,  in  a  pubhshcd  work,  where  such  work  was 
first  pubhshcd  in  any  part  of  the  British  Dominions  to 
which  the  Act  extends.  For  the  purposes  of  this  Act  "a 
work  shall  be  deemed  to  be  first  published  within  the 
parts  of  His  Majesty's  Dominions  to  which  this  Act  ex- 
tends, notwithstanding  that  it  has  been  published  simul- 
taneously in  some  other  place  .  .  .  and  a  work  shall  be 
deemed  to  be  published  simultaneously  in  two  ]ilaccs  if 
the  time  between  the  publication  in  one  such  place  and 
the  pul)lication  in  the  other  place  does  not  exceed  fourteen 
days,  or  such  longer  period  as  may,  for  the  time  behig, 
be  fixed  by  Order  in  Council." 
654 


COPYRIGHT  IN  UNITED  KINGDOM  AND  PROTECTORATES      655 

An  Anicriciui  citizen  may  secure  copyright  in  a  motion 
picture  produced  in  tliis  country  by  publi.shing  the  same 
siinuhancously  (that  is,  within  fourteen  days)  in  this 
country  and  in  any  part  of  the  British  dominions  to  which 
the  11)11  Act  extends. 

At  the  time  of  the  going  into  effect  of  the  1911  Act,  the 
Act  extended  to  all  of  the  "British  dominions  with  the 
exception  of  the  self-governing  dominions,  to  wit:  Do- 
minion of  Canada,  Commonwealth  of  AustraUa,  Domin- 
ion of  New  Zealand,  Union  of  South  xVfrica,  and  New- 
foundland. 

Since  then,  Newfoundland  has  adopted  the  Act  in  its 
entirety  without  any  qualifications. 

Australia  and  the  Union  of  South  Africa  have  adopted 
the  Act  with  certain  modifications  and  additions. 

New  Zealand  has  passed  a  Copyright  Act  which  is 
based  upon  the  1911  Act,  and  which  grants  to  British 
subjects  rights  substantially  identical  with  those  given 
under  the  1911  Act. 

Canada,  however,  has  not  as  yet  seen  fit  to  take  any 
action  with  respect  to  such  Act,  and  the  provisions  of 
the  Act  do  not  extend  to  that  dominion. 

Under  an  Order  hi  Council,  which  was  expressly  au- 
thorized by  the  Act,  Cyprus  and  the  British  protectorates 
were  included  within  its  provisions;  the  protectorates 
specified  in  that  Order  in  Council  are  Cyprus,  Bechuana- 
land  Protectorate,  East  Africa  Protectorate,  Northern 
Nigeria  Protectorate,  Northern  Territories  of  the  Gold 
Coast,  Nyassaland  Protectorate,  Northern  Rhodesia, 
Southern  Hhotlesia.  Si(Ma  Leone  Protectorate,  Sonialiland 
Protectorate,    Southern    Nigeria    Protectorate,    Solomon 


656  THE    LAW   OF   MOTION    PICTURES 

Island  Protectorate,  Swaziland,  Uganda  Protectorate  and 
Weihaiwei. 

Deposit  of  Books  in  British  Museum 

The  provision  of  the  1911  Act  with  respect  to  deposit 
in  the  British  Museum  and  other  libraries  has  reference 
only  to  books.  This  section  of  the  Act  may  be  disregarded 
so  far  as  motion  pictures  are  concerned. 

Publication 

Under  Section  three  of  the  Act  of  1911  ''publication  in 
relation  to  any  work  means  the  issue  of  copies  of  the 
work  to  the  pubhc."  There  must  be  a  bona  fide  issue  of 
copies,  for  under  Section  thirty-five  of  Subdivision  tliree 
"a  colourable  pubUcation,  and  one  'not  intended  to 
satisfy  the  reasonable  requirements  of  the  pubhc,'  will 
not  be  in  conformity  with  the  statute."  Francis  Day  and 
Hunter  v.  B.  Feldman  &  Co.  (1914),  L.  R.,  2  Ch.  728. 

Unpublished  Works 

Great  Britain  issued  an  Order  in  Council  on  Febru- 
ary 3,  1915,  under  Section  twenty-nine  of  the  1911  Act 
containing  the  following  i)rovision:  "The  Coi)yright  Act 
of  1911  including  the  provisions  as  to  existing  works, 
shall,  subject  to  the  provisions  of  the  said  Act  and  of  this 
Order,  apply:  (a)  To  literary,  dramatic;,  nnisical  and 
artistic  works,  the  authors  whereof  were  at  the  time  of  the 
making  of  the  works,  citizens  of  the  United  States  of 


COPYRIGHT  IN  UNITED  KINGDOM  AM)  I'UOTECTOUATKS      (i')? 

America,  in  like  maimer  as  if  the  authors  had  Ijcen  Britisli 
subjects;  (bj  In  respect  of  residence  in  the  United  States 
of  America,  in  like  manner  as  if  such  residence  had  been 
residence  in  the  i)arts  of  His  Majesty's  Dominions  to 
wliich  the  said  Act  extends." 

The  Order  further  provides  that  the  enjoyment  of  tlie 
rights  given  by  the  Order  sliall  l)e  sul)ject  to  the  accom- 
phshment  of  the  conditions  and  formalities  prcscri})ed 
by  the  law  of  the  United  States,  and  that  the  term  of 
copjTight  shall  not  exceed  that  conferred  by  the  Ameri- 
can law. 

Under  this  Order  in  Council  a  citizen  of  or  resident 
in  the  United  States  is  entitled  to  the  benefits  of  the 
English  Copyright  Law  of  all  his  unpublished  works  com- 
posed by  him  while  he  was  such  citizen  or  resident,  pro- 
vided he  has  complied  with  the  conditions  and  fomialities 
prescribed  by  the  United  States  Copyright  Laws. 

As  soon  as  that  formality  has  been  complied  with  by 
the  author  of  any  .American  work  he  becomes  vested  with 
the  rights  secured  by  the  English  Copyright  Law  in  un- 
pui)lished  works. 

It  is  not  necessary  for  him  to  take  any  steps  or  comply 
with  any  formalities  whatever  in  Great  Britain. 

It  is  to  be  remembered,  however,  that  the  right  thus 
secured  will  continue  in  efTect  only  as  long  as  the  work 
remains  unj)ublished. 

As  soon  as  the  work  is  ])ublished  in  the  United  States, 
the  benefits  of  the  English  Copyright  Law  will  be  lost 
unless  the  work  is  simultaneously  ])ul)lished  in  the  United 
Kingdom  of  Great  Britain  ami  Ireland,  or  in  such  other 
parts  of  the  British  Dominions  to  which  the  1911  Act 


658  THE    LAW    OF   MOTION    PICTURES 

extends,  or  published  in  such  Dominions  within  fourteen 
days  after  pubHcation  in  the  United  States. 

The  Order,  however,  provides  that  it  shall  not  extend 
to  the  self-governing  domuiions.  Until  each  self-governing 
dominion  approves  of  the  provisions  of  the  Order,  it 
does  not  extend  to  such  dominions. 

Section  189. — Copyright  in  Newfoundland. 

Newfoundland  adopted  the  British  Copyright  Act  of 
1911  in  full  by  an  enactment  of  its  Legislature  in  1912, 
except  those  clauses  which  are  expressly  restricted  to  the 
United  Kingdom.  She  has  in  addition  become  a  party 
to  the  revised  Berne  convention  of  BerHn  of  1908. 

Since  Newfoundland  has  become  a  part  of  the  British 
Dominions  to  which  the  Act  of  1911  extends,  first  or 
simultaneous  pubhcation  of  an  American  film  in  New- 
foundland secures  copyright  under  the  1911  Act  through- 
out the  British  dominions  to  which  the  Act  extends;  and 
in  like  manner  first  or  simultaneous  publication  in  any 
part  of  the  British  dominions  to  which  the  Act  extends 
secures  copyright  thereunder  enforceable  in  Newfound- 
land. 

Section  190. — Copyright  in  Commonwealth  of  Aus- 
tralia. 

In  1912,  Australia  passed  a  Copyright  Act  which  de- 
clared the  Act  of  1911  to  be  in  force  m  its  territory  subject, 
however,  to  certain  modifications.  The  modifications 
have  reference  chiefly  to  summary  remedies  granted 
under  the  Australian  Act  which  are  broader  than  those 
granted  under  the  1911  Act. 


COPYitKill  I'    IN    ( OMMONW  KAI.ril    OK    ArS'J'KAMA       059 

Provision  is  also  made  for  resist  rat  ion  (jf  copyright 
and  deposit  of  copies;  such  registration  and  deposit, 
•  however,  being  optional  and  not  mandatory.  The  chief 
advantage  of  registration  and  deposit  is  that  the  regis- 
tered owner  is  gi\en  tlie  right  to  pursue  certain  summary 
remedies  wliich  may  not  otherwise  be  invoked. 

The  Australian  Act  has  not  affected  the  Act  of  I'Jll 
with  respect  to  the  persons  who  may  secure  copyright. 
Anyone  entitled  to  secure  copyright  under  the  1911  Act 
is  accorded  protection  in  Australia. 

As  Australia  by  its  acceptance  of  the  1911  Act  has 
^come  within  its  provisions,  publicatit)n  in  Australia  is 
for  the  purposes  of  the  1911  Act  publication  within  the 
British  dominions  to  which  the  Act  extends.  First  or 
sinmltaneous  jniblication  in  England  or  any  other  part 
of  the  British  dominions  to  which  the  Act  extends  gives 
British  coi)>Tight  wliich  is  enforceable  in  Australia. 

Section  191. — Copyright  in  Dominion  of  New  Zealand. 

New  Zealand  passed  a  Coi)yright  Act  in  1913,  wliich 

went  into  effect  on  April  1st,  1914,  based  upon  the  1911 

,  Act.     There  were  modifications  as  to  sunmiary  remedies 

and    iirovisions    for    optional    registration    and    deposit 

similar  to  the  Australian  Act. 

The  Act  provides  that  coi^yright  shall  subsist  in  a 
published  work  if  first  publication  takes  place  in  New 
Zealand,  and  that  in  the  case  of  an  unpublished  work, 
copyright  shall  subsist  therein  only  if  at  the  date  of  the 
making  of  the  work  the  author  is  a  British  subject  or 
n^si(l(Mit  in  New  Zealand.  The  Act  further  proviiles  that 
c()i)yright  shall  be  extended  to  no  other  works  except 


000  THE    LAW    OF   MOTION    PICTURES 

such  as  may  be  given  protection  by  an  Order  in  Council 
of  the  Governor.  An  Order  in  Council  has  been  made 
by  the  Governor  of  New  Zealand  extending  the  Act  to 
Great  Britain,  so  that  first  publication  in  Great  Britain 
is  equivalent  to  a  first  publication  in  New  Zealand,  and 
will  afford  protection  under  the  New  Zealand  Act. 

In  addition  thereto  an  Order  in  Council  has  been  made 
by  the  Governor  extending  the  provisions  of  the  Act  to 
countries  belonging  to  the  Copyright  Union  as  of  April  1st, 
1914,  from  which  date  New  Zealand  may  be  regarded  as  a 
party  to  the  Revised  Berne  Convention  of  Berlin  of  1908. 

Section  192. — Copyright  in  Union  of  South  Africa. 

Like  Australia  the  Union  of  South  Africa  passed  an 
Act  in  1916  adopting  the  1911  Act  in  accordance  with 
Section  twenty-five  thereof,  and  declared  the  same  to  be 
in  force  in  the  Union  subject  to  certain  modifications 
and  additions,  consisting  chiefly  of  a  system  of  registra- 
tion and  deposit,  and  the  imposition  of  severer  penalties 
for  infringements. 

Section  193. — Copyright  in  Dominion  of  Canada. 

Method  No.  J 

Canada  has  not  y(>t  taken  any  step  toward  accepting 
in  whole  or  iu  ])art  tin;  1911  Act,  nor  has  she  passed  any 
legislation  rej)('aling  or  modifying  any  of  the  Acts  of 
Piirliani(!nt  in  so  far  as  th(;y  affected  her  at  the  time  of 
the  taking  vJk\ct  of  the  1911  Act,  although  this  right 
was  cxpn^ssly  conferred  upon  her  by  Section  twenty-six 
of  that  Act. 


COPYRIGHT   IN    DOMINION    OF   CANADA  601 

All  those  Acts  of  Parliamont,  tlieroforc,  which  were  in 
force  in  Canada  on  July  1st,  l'J12,  are  still  valid  and  sub- 
sisting in  Canada.  Those  Acts,  so  far  as  they  may  affect 
eopyrifzilit  in  motion  ])ictures,  are  the  Literarv  CopyriRht 
Act  of  1842  and  the  International  Copyright  Act  of 
1886.' 

When  the  1842  Act  was  passed  the  art  of  motion  pic- 
tures was  unknown,  and  there  is  no  specific  provision  in 
that  Act  conferring  copyright  in  motion  i)ictures.  Section 
II,  however,  in  defining  the  meaning  of  the  words  "dra- 
matic i)iece,"  (protected  under  that  Act)  as  that  ])hrase 
is  used  in  the  Act,  provides  that  such  i)lirase  '"shall  be 
construed  to  mean  and  include  every  tragedy,  comedy, 
l)lay,  opera,  farce,  or  other  scenic,  musical,  or  dramatic 
entertainment."  While  we  know  of  no  decision  which 
holds  that  motion  pictures  arc  included  within  that 
definition,  we  believe  that  the  provision  is  broad  enough 
to  include  a  motion  picture,  especially  in  view  of  the 
use  of  the  words  "scenic  .  .  .  entertainment"  and  "dra- 
matic entertainment." 

The  1842  Act,  while  containing  no  express  provision 
where  ])ublication  was  first  to  take  place,  was  heltl  to 
have  intended  first  pubhcation  in  the  United  Kingdom 
alone. - 

The  Act  provides  in  Section  XXT^'  that  the  copyright (m1 
work  shall  be  registered  in  the  Book  of  Ut^gistry  of  tlie 
Stationers  Company. 

'See    liUicIc    V.   ImiHruil  Book  Itli  I'.d.,  p.  89;  C/ia/jpe// v. /*jm% 

Co.   (Can.)  (1904),  8  Ont.  L.  R.  (Eng.)   (1845),  4  W.  &  C.  485; 

9;  :i(TM  35(^111.  Sup.  Ct.  4S.H.  Routledgc  v.  Loir  (Kng.)   (1865), 

-  Cupinger,  Law  of  Copyrights,  L.  K.  3  H.  L.  100. 


662  THE    LAW   OF   MOTION    PICTURES 

Failure  to  comply  with  registration  does  not  affect  the 
vaUdity  of  the  copjo-ight,  but  prevents  the  maintenance 
of  an  action  for  infringement. 

Not  only  may  a  British  subject  secure  copyright  under 
this  Act,  but  any  alien,  as  well,  who  resided  at  the  time 
of  first  publication,  in  the  British  Dominions.^ 

We  now  come  to  the  interesting  question  whether 
under  this  Act  a  non-resident  alien,  first  publishing  in 
the  United  Kingdom,  may  secure  copyright  thereunder. 
In  Routledge  v.  Low,  an  American  authoress,  who  had 
taken  up  a  nominal  residence  in  Canada  for  the  sole  pur- 
pose of  being  in  the  British  dominions  at  the  moment  of 
first  pubhcation  of  the  work  in  England,  was  held  to  have 
acquired  a  valid  British  copyright.  Although  it  was 
not  necessary  for  the  court  to  pass  upon  the  question 
of  a  non-resident  alien  acquiring  British  copyright  under 
this  Act,  the  court  nevertheless  discussed  this  proposition 
at  length.  Lord  Cairns  said:  "Protection  is  given  to 
every  author  who  publishes  in  the  United  Kingdom, 
wheresoever  that  author  may  be  resident,  or  of  whatever 
state  he  may  be  the  subject.  The  intention  of  the  Act 
is  to  obtain  a  benefit  for  the  people  of  this  country  by  the 
publication  to  them  of  works  of  learning,  of  utility,  of 
amusement.  The  benefit  is  obtained,  in  the  opinion  of  the 
legislature,  by  offering  a  certain  amount  of  protection  to 
the  author,  thereby  inducing  him  to  publish  his  work  here. 

'Routledge     v.      Low      (Kiik.)  (Kiir.)    (1851),   5  Do  O.  &  Sm. 

(180.S),   L.   R.   :{   II.    L.    KM),  -"i?  SO,  Hi  Jur.  Ur,  Ollendorf  \.  liUick 

L.  J.  (C;.  II.)  454,  18  L.  T.  874;  (IOiik-)   (1850),   4    Do   ('..  &  Sm. 

JvffmjH  V.  «oo.sr7/  (MriR.)  (1854),  20!);  20  L.  J.  (C.  II.)  1G5. 
4  II.  L.  C.  815;  BuxUm  v.  James 


COPYRIGHT    IN    DOMINION    OF    CANADA  ()f)3 

This  is  or  may  be,  a  benefit  to  the  author,  but  it  is  a  bene- 
fit given,  not  for  the  sake  of  the  author  of  the  work,  but 
for  the  sake  of  those  to  whom  the  work  is  communi- 
cated. ...  I  am  glad  to  be  able  to  entertain  no  doubt 
that  a  construction  of  the  Act  so  consistent  with  a  wise 
and  liberal  policy  is  the  proper  construction  to  be  placed 
upon  it." 

In  addition  to  the  weight  to  be  given  to  the  above  dicta, 
we  have  the  assurance,  gi\'en  by  Lord  Salisbury  to  the 
United  States  government,  at  the  time  of  the  passage 
of  the  Chace  Act  of  1891,  in  a  despatch  dated  June  IGth, 
1891,  to  the  President  of  the  United  States,  that  resi- 
dence in  the  British  Dominions  was  not  essential  in  order 
to  obtain  the  protection  of  the  British  Cop\Tight  Laws. 

The  International  Cop>Tight  Act  of  1886  extended 
the  1842  Act  ])y  making  it  possible  to  secure  British 
copjTight  by  first  pubHshing  the  w^ork  m  any  British 
possession,  provided,  however,  that  where  such  first 
publication  took  place  in  any  such  possession,  the  enact- 
ments contained  in  the  Act  of  1842  respecting  the  reg- 
istry of  the  copyright  in  such  work  should  not  aj^jjly, 
if  the  law  of  such  possession  provided  for  the  registration 
of  such  copjTight,  and  the  local  statute  in  force  in  tlie 
possession  where  first  pubhcation  took  place  had  to  be 
complied  with. 

The  18SG  Act  contains  the  significant  provision  that 
nothing  in  that  Act  or  in  the  1842  Act  "shall  prevent  the 
passing  in  a  British  possession  of  any  Act  or  ordinance 
respecting  the  copyright  within  the  limits  of  such  pos- 
session, of  works  first  produced  in  that  possession."  ^ 
*  Section  eight,  subsection  four. 


(364  THE   LAW  OF  MOTION   PICTURES 

The  significance  of  this  section  Hes  in  the  fact  that 
under  the  local  Canadian  statute  now  in  force,  copyright 
may  be  acquired  thereunder  only  by  those  who  are  "dom- 
iciled in  Canada  or  in  any  part  of  the  British  possessions  or 
any  citizen  of  any  country  which  has  an  international 
cop>Tight  treaty  with  the  United  Kingdom."  ^ 

Canada  has  consistently  refused  to  recognize  any 
relation  existing  between  the  United  States  and  Great 
Britain  which  would  bring  the  former  within  these  pro- 
visions. Since  the  American  may  not  apply  for  Canadian 
copyright  under  the  local  statute,  then  he  may  not,  under 
the  International  Act  of  1886,  secure  British  copyright  by 
first  publishing  in  Canada.  ^ 

To  secure  protection,  therefore,  in  Canada,  under  the 
English  Acts  of  1842  and  1886,  he  must  publish  in  those 
parts  of  the  British  dominions  which  permit  him  to  secure 
copyright  under  the  local  statute,  in  which  event  he  must 
comply  with  the  local  statute  with  respect  to  registration, 
where  the  statute  makes  provision  for  the  same.  And 
if  there  is  no  such  provision  in  the  local  statute  he  must 
register  in  Stationers'  Hall  and  make  the  deposit  when 
so  required. 

To  avoid  any  complications,  the  safest  course  to  pursue 
is  to  first  publish  in  the  United  Kingdom  and  register 
in  Stationers'  Hall. 

TIk^  rights  of  an  American  citizen,  non-resident  in  the 
British  dominions,  wiio  first  pul)lishe(l  in  the  United  King- 
dom, were  not  affected  by  this  Act  of  1886,  and  these 

'•  Canadian  Copyright  Act  1886,      of  1!K)0,  as  amended  by  tlie  Laws 
§  1  (now  Part  I,  cliupter  70,  of      of  1908).     See  Appendix, 
till-  l{('vised  Statut(!.s  of  ( "aiiada 


("Ol'VKICII'l'    IN    DOMINION    OF    CANADA  ((()') 

rifzilils  wore  ox])r('ssly  rcco^iizcd  l>y  Ihv  liiitisli  govern- 
ment in  1891  by  Lord  Salisbury. 

In  short,  under  the  1842  and  188G  English  Acts,  still 
in  force  in  Canada,  an  American  citizen,  resident  in  the 
United  States,  by  first  publisliing  his  motion  j)ictiire  in 
the  United  Kingdom,  secures  copyright  in  his  film;  and 
by  registration  in  Stationers'  Hall,  is  entitled  to  enforce 
his  copyright  in  Canada. 

I'irst  ])ublication  has  been  held  to  take  place  under  the 
Act  of  1842  where  there  is  simultaneous  publication  in 
this  country  and  in  the  United  Kingdom."  And  simul- 
taneous i)ublication  will  be  deemed  to  be  equivalent  to 
first  publication  under  the  Act  of  188G  in  view  of  the 
official  assurance  given  to  the  United  States.^ 

It  must  be  borne  in  mind  that  the  simultaneous  pub- 
Hcation  here  spoken  of  is  not  made  i)ursuant  to  the  1911 
Act,  and  the  fourteen  days'  grace  provided  for  in  the  1911 
Act  has  no  application  whatsoever.  Simultaneous  pub- 
lication as  here  used,  means  pubUcation  made  on  the 
same  day  in  both  countries. 

Although  it  has  been  held  that  registration  in  Sta- 
tioners' Hall  is  no  longer  possible  because  of  the  1911  Act,^ 
yet,  as  a  matter  of  fact,  as  late  as  July  20th,  1917,  a  coin- 

*  Grossman    v.    Canada    Cycle  See    also:    Copinger,    Law    of 

Co.  (Can.)  (15)02),  5  O.  L.  R.  55;  Copyright,  4th  Ed.,  p.  89. 

Cocks  V.   rimlmj   (Kng.)   (1846),  ''Lord  Sali.sl)ur>':  Official  Brit- 

2  Car.   iV-    Ivirw.  26'.);    Routkdge  ish    I)is|)atch    a(i(lres.scd    to    the 

V.    Ijur    (lliijr.)    (ISOS),    L.    H.,  PiTsidciit   (.f   the   United  States 

;i    11.    L.    1(K).      Puhlications    in  dated  June  16tli,  1891. 

England     and    aWroad    sinuilta-  *  A'rnfw  v.  Mom'i"  (Eng.)  (1913), 

ncoiisly  will  not  prevent  eopyriglit  W.  N.  58. 
in  England. 


666  THE    LAW   OF   MOTION   PICTURES 

munication  emanating  from  an  official  of  the  Stationers' 
Company  stated  that  works  were  still  offered  and  ac- 
cepted for  registration  under  the  Act  of  1842.^ 

Objection  has  been  made  to  the  regularity  of  this  pro- 
cedure, upon  the  ground  that  the  Act  of  1911  has  repealed 
the  Act  of  1842,  in  the  United  Kingdom,  and  that  the 
steps  of  publication  and  registration  may  not  be  taken 
in  that  territory  under  a,  repealed  Act  having  no  force 
therein. 

If  that  were  the  correct  view,  the  provision  under  the 
1911  Act  holding  the  Acts  of  1842  and  1886  valid  with 
respect  to  the  self-governing  dominions,  would  be  nuga- 
tory. 

For  example,  if  this  were  so,  a  subject  and  resident  of 
the  United  Kingdom  desirous  of  protecting  his  copyright 
in  Canada  would  be  unable  to  protect  his  work  by  regis- 
tration, his  1911  Act  would  not  extend  into  Canadian 
territory,  and  he  would  be  compelled  to  comply  with  the 
local  Canadian  statute,  which  would  necessitate  re- 
publication by  him  in  Canada  and  full  compliance  with 
the  Canadian  statute. 

A  Canadian,  on  the  other  hand,  by. first  publishing  in 
Canada  and  c()mi)lying  with  the  Canadian  statute  with 

»  "Stationers'  Hull  which   luis   adopted    the   Act   of 

"  London,  10.  C'.  1911    seems    wlioliy    uniiccessjiry 

"  July  20th,  1917.  and  useless  expense.     The  fee  is 

"Books   published    in   (lanada  5.s'.  per  entry,  not 'is." 

are  still    ref!;ist(>red   hen;    by    the  TIk;    above    iiifornialion    and 

registerinj?  offi(-er  under  the  Act  lett(>r   were   secured    from    "The 

of     1842,     but     reKistration     of  Publishers'  Circular"  Wcstrand, 

works    first    published    in    (.Irrnt  liondon,  issue  of  September  1st, 

Britain  or  any  British  possessicju  1*J17. 


COPYRIGHT    IN    DOMIN'ION    OF   CANADA  0G7 

respect  to  registration,  \v(juld  secure  a  valid  copyright 
in  Canada  as  well  as  throughout  the  British  dominions, 
inchiding  the  United  Kingdom. 

We  would  have  the  anomalous  situation  of  a  Canadian 
having  greater  rights  than  those  accorded  a  subject  and 
resident  of  the  United  Kingdom. 

We  do  not  believe  that  this  was  the  intention  of  Parlia- 
ment. The  1911  Act  rather  intended  to  maintain  the 
status  quo  with  respect  to  England  and  her  self-governing 
dominions  which  existed  prior  to  its  taking  effect,  until 
such  time  as  each  dominion  saw  fit  to  modify  its  law  with 
respect  to  copyright. 

Method  No.  2 

Instead  of  relying  upon  the  protection  given  in  Canada 
by  complying  with  the  English  Acts  of  1842  and  1880  as 
above  outlined,  many  Americans  have  sought  to  obtain 
copyright  in  Canada  under  the  local  statute  by  first  se- 
curing copyright  in  their  work  in  the  United  Kingdom 
under  the  present  English  statute,  and  thereafter  claim- 
ing copyright  under  the  local  Canadian  statute  by  virtue 
of  Section  0  thereof. 

That  section  (Section  G  of  the  Canadian  Act  of  1886) 
provides:  "Every  work  of  which  the  copyright  has  been 
granted,  and  copyright  of  which  is  not  secured  or  sub- 
sisting in  Canada,  under  any  act  of  the  Parliament  of 
Canada  .  .  .  .shall,  when  printed  and  published,  or  re- 
printed and  re])ublished  in  Canada  be  entitled  to  copy- 
right under  this  Act." 

The  .Vmerican,  having  secured  British  copjTight  in 
his  work,  would  seem  to  be  entitled  to  apply  for  local 


668  THE    LAW   OF   MOTION   PICTURES 

Canadian  copyright  by  re-printing  and  re-publishing 
his  work  in  Canada. 

Although  the  precise  question  has  not  yet  come  before 
the  Canadian  courts,  the  Canadian  Department  of  Agri- 
culture has  expressly  recognized  the  right  of  a  citizen  of 
the  United  States  who  has  a  subsisting  British  Copyright 
in  his  work,  to  secure  copyright  therein  under  the  Cana- 
dian statute  by  complying  with  the  requirements  of  the 
Canadian  Act  with  respect  to  printing,  publication,  notice 
and  deposit.  The  bulletin  of  the  Department  (Circular 
No.  4a)  is  given  in  full  below.  ^°  The  Canadian  Act  is 
given  in  full  in  the  appendix. 

It  should  be  remembered  that  where  copyright  pro- 
tection is  secured  under  the  local  Canadian  statute, 
such  protection  does  not  give  the  exclusive  right  to  per- 
form the  copyrighted  work,  since  the  Canadian  statute 
confers  no  performing  rights. 

This  defect  in  the  statute  practically  destroyed  the 

"  Circular  No.  4a  and  to  Forms  A  and  Al,  pages  19 
and  20  of  the  Circular. 

DEPARTMENT  OF  AGRI-  Canadian  Copyright  of  a  work 

CULTURE,  ^iii  jjg  regist{M-ed  in  favor  of  a 

Copyright  and  Trade  Mark  citizen  of  the  United  States  upon 

Branch,  the  applicant  shewing  that  he  has 

Ottawa,  Canada,  subsisting    British    copyright    of 

Sin,  such   work   and   othorwiso   coin- 

I  beg  herewith  to  enclose  Circu-  plying  with  the  re(iuironicnts  of 

lar  containing  The  Copyriglit  Act  the  Act,  Rules  and  Forms, 

with  Rules  and  Forms  under  the  I  have  the  honor  to  be, 

same.  Sir, 

I   would  direct  your  attention  Your  obedient  servant, 

to  Sections  4,  0,  8,  11,  14  and  24  B.  E.  Ritchie, 

of  the  Act,  to  Rule  IV,  page  17,  Registrar  of  CopyriglU,  t&c. 


COPYRIGHT    IN    DOMINION    OF    CANADA 


009 


value  of  druiiKitic  works  whicli  dciK'iidcd  lor  lluur  copy- 
right upon  the  local  statute.  To  remedy  this  condition, 
an  aft  was  passed  in  1915  making  it  a  crime  to  perform 
without  the  ^\TittoIl  consent  of  the  copyright  proprietor, 
''in  ])ublic  and  for  jnivate  jirofit  the  whole  or  any  i)art 
of  any  dramatic  or  operatic  work  or  musical  composition 
in  which  copyright  subsists."  " 

Method  No.  3 

It  has  been  contended,  and  with  much  logic,  that  an 
American,  resident  in  the  United  States,  and  first  pub- 

' '  An  Act  to  Amend  the  Criminal 

Code 
5  George  5,  Chap.  12  (April  15, 

1915) 

Section  508 A.  "Any  person 
who,  without  tlic  written  consent 
of  the  owner  of  tlic  copyright  or 
of  his  legal  representative,  know- 
ingly i)erforins  or  causes  to  be 
jM'rfonned  in  i)ul)lic  and  for  pri- 
vate profit  the  whole  or  any  part, 
constituting  an  infringement,  of 
any  dramatic  or  operatic  work 
or  nnisical  composition  in  which 
copyright  subsists  in  Canada, 
shall  he  guilty  of  an  offence,  and 
shall  he  liable  on  summary  con- 
viction to  a  fine  not  exceeding  two 
hundred  and  fifty  dollars,  or,  in 
tlie  case  of  a  second  or  sui)se(}uent 
otTeiice,  either  to  such  fine  or  to 
imprisonment  for  a  time  not  ex- 
ceeding two  months,  or  to  both." 


Section  50SB.  "Any  person 
who  makes  or  causes  to  be  made 
any  change  in  or  suppression  of 
the  title,  or  the  name  of  the  au- 
thor, of  any  dramatic  or  oi)eratic 
work  or  musical  composition  in 
which  copyright  subsists  in  Cana- 
da, or  who  makes  or  causes  to  be 
made  any  change  in  such  work 
or  composition  itself  without  the 
written  consent  of  the  author  or 
of  his  legal  representative,  in 
order  that  the  same  may  be  per- 
formed in  whole  or  in  part  in 
l)ublic  for  private  profit,  shall  be 
guilty  of  an  offence,  and  .shall  \)C 
liable  on  summary  conviction  to 
a  fin(>  not  exceeding  five  hundred 
dollars,  or,  in  the  ca.sc  of  a  second 
or  subsequent  offence,  either  to 
such  fine  or  to  imprisonment  for 
a  term  not  exceeiling  four  months, 
or  to  both." 


G70  THE    LAW   OF   MOTION   PICTURES 

lishing  in  Canada,  is  entitled  by  reason  of  the  Berne 
Convention  to  the  full  protection  accorded  to  resident 
Canadians  under  the  Canadian  statute. 

Canada  is  by  proxy  a  member  of  the  Berne  Convention, 
and  of  the  additional  Act  of  Paris  of  1896  modifying  the 
Berne  Convention.^-  Article  three  of  the  Berne  Conven- 
tion, as  modified  by  the  additional  Act  of  Paris,  reads  as 
follows:  "Authors  not  belonging  to  one  of  the  countries  of 
the  Union,  who  shall  have  published  or  caused  to  be  pub- 
lished for  the  first  time  their  literary  or  artistic  works  in  a 
country  which  is  a  party  to  the  Union,  shall  enjoy,  in 
respect  of  such  works,  the  protection  accorded  by  the 
Berne  Convention  and  by  the  present  additional  act." 

The  Berne  Convention  and  the  additional  Act  of  Paris 
are  at  the  present  time  in  full  force  and  effect  so  far  as 
Canada  is  concerned.  The  Berlin  Convention  of  1908, 
indeed,  expressly  provides  in  Article  27,  that  the  Berne 
Convention  and  the  additional  Act  "shall  remain  in  force 
in  regard  to  relations  with  states  which  do  not  ratify  the 
present  convention." 

Canada,  not  having  taken  any  action  with  respect  to 
the  Berlin  Convention  is  therefore  bound  by  the  Berne 
Convention  and  the  additional  Act  of  Paris.  An  Amer- 
ican then  under  Article  3  would  seemingly  have  the  right 

'Miorno  Convention  was  signed  Great    Britain,    l)y    Order    in 

by  Great  Britain  September  5,  Council,  adopted  the  additional 

1887,  and  on  November  28,  1887,  act     of     Paris     on     IMan^h     7, 

an  Order  in  Council  was  made  1898. 

by     Great     Britain     giving     full  See    Mary    v.    Hubert    (Can.) 

effect  to  the  convention  through-  (190G),  15  (^ue.  K.  B.  381. 
out  the  British  Dominions. 


COPYRIGHT    IN    DOMINION    Ol     CANADA 


071 


to  first  publish  in  Canada  and  thereby  secure  copyright  in 
Canada;  and  any  provision  in  the  Canadian  statutes  which 
attempts  to  d('j)riv('  liiin  of  that  right,  is  in  derogation  of  a 
solemn  intenuitioniil  compact.''^ 

The  fact  remains,  however,  that  Canada  refuses  to 
consider  herself  bound  by  the  Convention  with  respect 
to  American  authors." 


"Sec  in  tills  connection:  Cop- 
ingcr,  Fifth  Ed.,  p.  342,  citing 
Smilcti  V.  Bdford  (Can.)  (1877), 
1  Ont.  App.  R.  43G;  Morang  v. 
I'lihlisfwrs'  SymUcale  (Can). 
(11)00),  32  O.  R.  393;  Black  v. 
Imperial  Book  Co.  (Can.)  (1903), 

5  Ont.  L.  R.  1S4,  (1905),  21  T.  L. 
R.  540;  Ilawkcs  v.  Whalcij,  lioycc 

6  Co.,  "The  Author"  for  1913, 
p.  202. 

See  also:  Ikiggs  on  Interna- 
tional Copyright  (Stevens  6c 
llaynes,  London,  190G),  p.  625: 
"Even  as  it  is,  it  may  be  pointed 
out  that  the  Canadian  law  now  in 
forc(>,  which  reiulers  printing  and 
l)ul)lishiMg,  or  reprinting  and 
republishing  in  Canada,  though 
without  any  limit  of  time,  a  con- 
dition of  cojiyright,  cannot  oper- 
ate to  prevent  the  author  of  a 
liritish  work  from  gaining  pro- 
tection in  Canada  without  pub- 
lishing in  that  country.  He  gets 
this  right  under  Ini|HTial  legis- 
lation, which  no  Canadian  stat- 
ute can  override." 


'*  Ilislory  of  Canadian  Copyright 
legislation: 

While  Imixjrial  copyright  has 
been  greatly  simplified  by  the 
Act  of  1911,  and  this  especially 
so  with  reference  to  motion 
pictures,  Canadian  copj'right  has 
been  thrown  into  confusion. 

The  hjllowing  is  a  brief  review 
(jf  the  history  of  Canadian  copy- 
right legislation  which  is  essen- 
tial to  a  proper  understanding  of 
the  subject. 

The  English  Literarj'  Act  of 
1842  extended  to  every  part  of 
the  Hriti.sh  dominions,  including 
of  course  Canada.  Under  that 
Act  a  British  subject  publish- 
ing in  England  obtained  copj'- 
right in  Canada  as  well,  and  was 
thereby  enabled  to  prevent  the 
imiMtrtation  of  cheap  reprints 
or  cilitions  of  his  work  into  the 
colonies. 

This  state  of  affairs  gave  rise 
to  dissatisfaction  in  Canada,  as 
it  made  the  colony  de|)endent 
uiKni  the  mother  country  for  her 


672 


THE    LAW    OF   MOTION   PICTURES 


Section  194. — International  Copyright. 

The  revised  Berne  Convention  of  1908,  more  popularly 
known  as  the  Berlin  Convention,  provides  in  Article  6: 


books,  and  compelled  her  to  pur- 
chase the  expensive  English  edi- 
tions. English  publishers,  on  the 
other  hand,  feared  to  publish 
cheap  editions  for  the  colonies 
because  such  books  were  apt  to 
find  their  way  back  to  Eng- 
land. 

To  relieve  this  condition  the 
Foreign  Reprints  Act  of  1847 
was  passed  in  England.  Under 
this  Act,  British  reprints  were 
allowed  to  be  imported  into 
Canada  under  certain  conditions, 
but  the  Act  proved  wholly  un- 
satisfactory to  Canada,  and  failed 
to  remedy  the  conditions  of 
which  that  dominion  complained. 
The  position  as  to.  reprints  was 
greatly  modified  by  the  1875  Act 
luTcinafter  discussed  under  which 
the  British  subject,  by  publishing 
and  printing  a  Canadian  edition, 
could  exclude  foreign  reprints, 
although  not  himself  permitted 
to  imi)ort  his  Britisli  edition, 
and  under  which,  if  he  did  not 
publish  and  print  in  Canada, 
he  wa.s  permitted  to  import  his 
British  edition  and  suppress  mul- 
ti[)licati()n  of  copies  in  Canada, 
but  could  not,  under  Ihe  terms  of 


the  1847  Act,  prevent  the  impor- 
tation of  foreign  reprints. 

The  Foreign  Reprints  Act  con- 
cerns itself  only  with  books. 

In  1862  The  Fine  Arts  Act  was 
passed  in  England  giving  pro- 
tection to  drawings,  paintings  and 
photographs.  This  Act  was  held, 
however,  not  to  extend  to  Can- 
ada. Graves  v.  Garrie  (Can.) 
(1903),  A.  C.  496;  Tuck  &  Sons 
V.  Priester  (Can.)  (1887),  19  Q. 
B.  D.  629.  It  will  thus  be  seen 
that  in  1862  photographs  were 
copyrightable  in  England,  but 
were  not  protected  in  Canada, 
while  lit(>rary  works  first  pub- 
lished in  iMigland  enjoj'^ed  copy- 
right protection  in  Canada.  While 
one  first  publishing  a  literary 
work  in  tlic  United  Kingdom  se- 
cured copyright  enforceable  in 
Canada,  a  Canadian,  first  pub- 
lishing in  Canada  secured  no  such 
reciprocal  rights  in  England  until 
the  International  Coi)vright  Act 
of  1S,S6. 

Although  she  liad  jKussed  a 
copyright  statute  in  1832,  Can- 
ada passed  her  first  important 
local  coi)yright  law  in  1X7"). 
This  ;u't  \v;is  repealed  by  tlu!  Act 


INTERNATIONAL   COPYRIGHT 


G73 


"Authors  not  being  subjects  or  citizens  of  one  of  the 
countries  of  tlie  Union,  who  first  pubHsh  thoir  works  in 


f)f  ISSf)  wliicli  is  the  fuiulamoiital 
copyright  statute  now  in  force. 

This  statute  grants  protections 
for  twenty-eiglit  years  to  persons 
domiciled  in  Canada  or  the 
British  dominions,  and  subjects 
of  countries  having  treaties  with 
Great  Britain.  Tiie  Act  also 
provides  that  all  works  given  the 
protection  of  copyright  are  re- 
(juirctl  to  \>c  first  published  in 
Canada,  a  dep<^sit  of  copies  made 
and  a  notice  of  copjTight  printed. 

The  olTect  of  this  act  and  its 
amendatory  acts  of  1889  (never 
approved  by  the  Crown)  and  1900 
have  been  much  discussed  in 
their  relation  to  the  Imj)crial 
Acts,  and  the  weight  of  authority 
now  seems  to  be  that  the  local 
acts  of  the  Colony  may  not  in 
any  way  abrogate  the  Imperial 
Statutes.  In  other  words,  Canada 
may  not,  unless  expressly  au- 
thorized by  England,  pass  any 
act  which  will  affect  any  subsist- 
ing Britisli  Copyright.  She  could 
and  she  ilid  pa.'ss  acts  which 
conferred  local  copyright,  but  in 
so  far  as  these  actxS  attempt  to 
curtail  or  destroy  any  right.s 
granted  under  the  British  Acts 
or  treaties  they  must  be  deemed 
ineffective. 


As  a  colony,  however,  Canada 
always  felt  that  she  was  em[X)w- 
ered  to  legislate  for  herself  with 
resjxjct    to    copyright,   and    this 
pcjsition  was  considerably  streng- 
thened   by    the    British    North 
American    Act    of    1867    which 
provided  for  the  consolidation  of 
Canada,  Nova  Scotia  and   New 
Brunswick,  and  for  a  Parliament 
which  was  e.xpressly  empowered 
to    legislate    exclusively,    among 
other  subjects,  on  copyright.    The 
al)ortive  Act  of   1889  illustrates 
the  length  to  which  the  Canadian 
Parliament  went  to  enact  copy- 
right legislation  which  was  not 
only  oijcnly  hostile  to  the  United 
States  but  to  England  as  well. 
The    Act    was    never    approved 
by  the  Crown,  but  owing  to  the 
feeling    on    Canada's    part    that 
she  was  the  subject  of  discrimina- 
tion on  the  part  of  the  United 
States,   a   concession   was  made 
to  her  by  the  mother  country  and 
another  Act  pa.ssed  by  the  Cana- 
dian   Parliament    in    1900    was 
approved,  by  which  Canada  was 
enabled   in   certain   instiinccs   to 
jirevent  the  importations  of  books 
copyrighted  in  the  United  King- 
dom i)ut  printetl  elsewhere. 

Canada's       cliief       grievance 


674  THE    LAW   OF   MOTION    PICTURES 

one  of  those  countries  shall  enjoy  in  that  country  the 
same  rights  as  native  authors,  and  in  the  other  countries 
of  the  Union  the  rights  granted  by  the  present  Conven- 
tion." 

This  pro\'ision  in  effect  gives  international  copyright 
to  an  American  author  who  merely  first  publishes  in  any 
country  of  the  Union  (e.  g.,  in  the  United  Kingdom). 

Since  the  Convention  provides  that  the  enjoyment 
and  exercise  of  the  rights  granted  thereunder  shall  not 
be  subject  to  the  performance  of  any  formahty,  the 
mere  first  pubhcation  confers  protection. 

This  convention  has  been  modified  by  the  additional 
Protocol  of  1914  to  the  extent  that  where  any  country 
outside  of  the  Union  fails  to  give  adequate  protection  to 
the  works  of  authors  who  are  subjects  or  citizens  of  one 
of  the  Union  countries,  nothing  in  the  provisions  of  the 
convention  shall  be  deemed  to  prejudice  in  any  manner 
whatsoever  the  right  of  the  contracting  states  to  impose 
restrictions  upon  the  protection  accorded  to  works  the 
authors  of  which  are,  at  the  time  when  such  works  are 
first  published,  subjects  or  citizens  of  any  such  country 
outside  the  Union,  and  not  actually  domiciled  in  one  of 
the  Union  countries. 

against  the  United  States  is  that  without  such  restriction.  Her 
the  American  statute  makes  it  cliic^f  clTort  has  been  to  pass  re- 
obhgatory  ff)r  foreign  Enghsh  tahatory  legislation,  but  in  that 
books  (whicli  iiichule  Canadian  respect  England  has  balked  her, 
books)  to  1)(!  set  up  in  type  and  a  policy  to  \vhi(rh  I'^ngland  feels 
printed  witiiin  tlic  V.uWvd  States,  herself  c-oininitted  by  reason  of 
while  American  works  in  which  her  membershi|)  in  the  inter- 
British  copyright  is  subsisting,  national  copyright  convention, 
may   be  imported   into   Canada 


INTERNATIONAL   COPYRIGHT  675 

It  is  important  to  bear  in  mind  that  no  protection  is 
accorded  hy  ihv.  convention  to  the  unpublished  works 
of  citizens  of  a  non-union  country. 

The  countries  who  are  niem))ers  of  th(>  Berhn  Conven- 
tion are,  the  United  Kingdom  of  Great  Britain  and  Ire- 
land, India,  Germany,  Belgium,  Denmark,  Spain,  France, 
Italy,  Japan,  Republic  of  Liberia,  Luxemburg,  Monaco, 
Norway,  Sweden,  Switzerland,  and  Tunis. 


APPENDIX 

UNITED  STATES  COPYRIGHT  ACT  OF  1909,  AS 
AMENDED  BY  THE  ACTS  OF  1912,  1913  AND 
I'll  1 

An   Act  to   Amend   and   Consolidate   the   Acts 
Respecting  Copyright 


Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
That  any  person  entitled  thereto,  upon  complying  with 
the  provisions  of  this  Act,  shall  have  the  exclusive  right : 

(a)  To  print,  reprint,  publish,  copy,  and  vend  the 
cojiyrighted  work; 

{b)  To  translate  the  copyrighted  work  into  other  lan- 
guages or  dialects,  or  make  any  other  version  thereof,  if  it 
be  a  literary  work;  to  dramatize  it  if  it  be  a  nondramatic 
work;  to  convert  it  into  a  novel  or  other  nondramatic 
work  if  it  be  a  drama;  to  arrange  or  adapt  it  if  it  be  a 
musical  work;  to  complete,  execute,  and  finish  it  if  it  l)o 
a  model  or  design  for  a  work  of  art; 

(c)  To  deliver  or  authorize  the  delivery  of  the  copy- 
righted work  in  public  for  profit  if  it  be  a  lecture,  sermon, 
address,  or  similar  production; 

{d)  To  perform  or  represent  tiie  cojjvrightcd  work 
publicly  if  it  be  a  drama  or,  if  it  be  a  dramatic  work  and 
not  reproduced  in  copies  for  sale,  to  vend  any  manuscript 

077 


678  APPENDIX 

or  any  record  whatsoever  thereof;  to  make  or  to  procure 
the  making  of  any  transcription  or  record  thereof  by  or 
from  which,  in  whole  or  in  part,  it  may  in  any  manner 
or  by  any  method  be  exhibited,  performed,  represented, 
produced,  or  reproduced;  and  to  exhibit,  perform,  repre- 
sent, produce,  or  reproduce  it  in  any  manner  or  by  any 
method  whatsoever; 

(e)  To  perform  the  copyrighted  work  pubhcly  for 
profit  if  it  be  a  musical  composition  and  for  the  purpose 
of  pubHc  performance  for  profit;  and  for  the  purposes 
set  forth  in  subsection  (a)  hereof,  to  make  any  arrange- 
ment or  setting  of  it  or  of  the  melody  of  it  in  any  system 
of  notation  or  any  form  of  record  in  which  the  thought 
of  an  author  may  be  recorded  and  from  which  it  may  be 
read  or  reproduced:  Provided,  That  the  provisions  of  this 
Act,  so  far  as  they  secure  copyright  controlling  the  parts 
of  instruments  serving  to  reproduce  mechanically  the 
musical  work,  shall  include  only  compositions  published 
and  copyrighted  after  this  Act  goes  into  effect,  and  shall 
not  include  the  works  of  a  foreign  author  or  composer 
unless  the  foreign  state  or  nation  of  which  such  author 
or  composer  is  a  citizen  or  subject  grants,  either  by  treaty, 
convention,  agreement,  or  law,  to  citizens  of  the  United 
States  similar  rights:  And  provided  further,  and  as  a  con- 
dition of  extending  the  copyright  control  to  such  mechanical 
reproductions,  That  whenever  the  owner  of  a  musical 
copyright  has  used  or  permitted  or  knowingly  acquiesced 
in  the  use  of  the  copyriglilcd  work  upon  the  parts  of 
instruments  serving  to  reproduce  mechanically  the  mu- 
sical work,  any  other  person  may  make  similar  use  of 
the  copyrighted  work  upon  the  payment  to  the  copy- 


APPENDIX  070 

right  proprietor  of  a  royalty  of  two  cents  on  eacli  such 
part  manufactured,  to  be  paid  by  the  manufacturer 
thereof;  and  the  ropyrif:;ht  proprietor  may  re(iuire,  and  if 
so  the  manufacturer  shall  furnish,  a  report  under  oath  on 
the  twentieth  day  of  each  month  on  the  number  of  parts 
of  instruments  manufactured  during  the  previous  month 
serving  to  reproduce  mechanically  said  musical  work,  and 
royalties  shall  be  due  on  the  parts  manufactured  during 
any  month  upon  the  twentieth  of  the  next  succeeding 
month.  The  payment  of  the  royalty  provided  for*by  this 
section  shall  free  the  articles  or  devices  for  which  such 
royalty  has  been  paid  from  further  contribution  to  tlie 
copyright  except  in  case  of  public  performance  for  profit : 
And  provided  further,  That  it  shall  be  the  duty  of  the 
copyright  owner,  if  he  uses  the  musical  composition  him- 
self for  the  manufacture  of  parts  of  instruments  serving 
to  reproduce  mechanically  the  musical  work,  or  licenses 
others  to  do  so,  to  file  notice  thereof,  accompanied  by  a 
recording  fee,  in  the  copyright  office,  and  any  failure  to 
file  such  notice  shall  be  a  complete  defense  to  any  suit, 
action,  or  j)roceeding  for  any  infringement  of  such  copy- 
right. 

In  case  of  the  failure  of  such  manufacturer  to  pay  to 
the  copyright  proprietor  within  thirty  days  after  demand 
in  writing  the  full  sum  of  royalties  due  at  said  rate  at  the 
dat(^  of  such  tlemand  the  court  may  award  taxable  costs 
to  the  plaintiflF  and  a  reasonable  counsel  fee,  and  the 
court  may,  in  its  discretion,  enter  judgment  therein  for 
any  sum  in  addition  over  the  amount  found  to  be  due  as 
royalty  in  accordance  with  the  terms  of  tliis  Act,  not 
exceeding  three  times  such  amount. 


68d  APPENDIX 

The  reproduction  or  rendition  of  a  musical  composition 
by  or  upon  coin-operated  machines  shall  not  be  deemed  a 
public  performance  for  profit  unless  a  fee  is  charged  for 
admission  to  the  place  where  such  reproduction  or  rendi- 
tion occurs. 

Sec.  2.  That  nothing  in  this  Act  shall  be  construed  to 
annul  or  limit  the  right  of  the  author  or  proprietor  of  an 
unpublished  work,  at  common  law  or  in  equity,  to  pre- 
vent the  copying,  publication,  or  use  of  such  unpublished 
work  without  his  consent,  and  to  obtain  damages  therefor. 

Sec.  3.  That  the  copyright  provided  by  this  Act  shall 
protect  all  the  copyrightable  component  parts  of  the 
work  copyrighted,  and  all  matter  therein  in  which  copy- 
right is  already  subsisting,  but  without  extending  the 
duration  or  scope  of  such  copyright.  The  copyright 
upon  composite  works  or  periodicals  shall  give  to  the  pro- 
prietor thereof  all  the  rights  in  respect  thereto  which  he 
would  ha\'e  if  each  part  were  individually  copyrighted 
under  this  Act. 

Sec.  4.  That  the  works  for  which  copyright  may  be 
secured  under  this  Act  shall  include  all  the  writings  of 
an  author. 

Se(".  5.  That  the  application  for  registration  shall  spec- 
ify to  which  of  the  following  classes  the  work  in  which 
copyright  is  claimed  belongs: 

(a)  Books,  including  composite  and  cyclopiedic  works, 
directories,  gazetteers,  and  oihv.r  com])ilations; 

(6)  Periodicals,  including  newspapers; 

(c)  Lectures,  sermons,  addresses  (prepared  for  oral 
delivery)  ; 

{d)  Dramatic  or  dramatico-musical  compositions; 


APPENDIX  681 

(e)  Musical  compositions; 

(/)  Maps; 

ig)  Works  of  art;  models  or  designs  for  works  of  art; 

(h)  Reproductions  of  a  work  of  art; 

(0  Drawings  or  plastic  works  of  a  scientific  or  tech- 
nical character; 

(j)   Photographs; 

(k)  Prints  and  pictorial  illustrations; 

(J)  Motion-piciare  pliotophiys; 

(m)  Motion  pictures  other  than  photoplays.^ 

Provided,  nerertJteless,  That  the  above  specifications 
shall  not  be  held  to  limit  the  subject-matter  of  copyright 
as  defined  in  section  four  of  this  Act,  nor  shall  any  error 
in '  classification  invalidate  or  impair  the  copyright  pro- 
tection secured  under  this  Act. 

Sec.  G.  That  compilations  or  abridgments,  adapta- 
tions, arrangements,  dramatizations,  translations,  or 
other  versions  of  works  in  the  jniblic  domain,  or  of  copy- 
righted works  when  produced  with  the  consent  of  the 
jiroprietor  of  the  copyright  in  such  works,  or  works  repub- 
lished with  new  matter,  shall  be  regarded  as  new  works 
subject  to  copyright  under  the  provisions  of  this  Act;  but 
the  ])ubli('ation  of  any  such  new  works  shall  not  afTect 
the  force  or  validity  of  any  subsisting  copyright  upon 
the  matter  emphjyed  or  any  part  thereof,  or  be  construed 
to  imply  an  -exclusive  right  to  such  use  of  the  original 
works,  or  to  secure  or  extend  copyright  in  such  original 
works. 

Sec.  7.  That  no  copyright  .shall  subsist  in  the  original 

'  Tlie  olianROs  marked,  aiul  the  additittn  of  the  words  |)riiit('d  in 
italics  are  authorized  by  the  amendatory  Act  of  August  24,  I'JIJ. 


682  APPENDIX 

text  of  any  work  which  is  in  the  pubHc  domain,  or  in  any 
work  which  was  pubhshed  in  this  country  or  any  foreign 
country  prior  to  the  going  into  effect  of  this  Act  and  has 
not  been  already  copyrighted  in  the  United  States,  or  in 
any  pubhcation  of  the  United  States  Government,  or  any 
reprint,  in  whole  or  in  part,  thereof:  Provided,  however, 
That  the  publication  or  republication  by  the  Government, 
either  separately  or  in  a  public  document,  of  any  material 
in  which  copyright  is  subsisting  shall  not  be  taken  to 
cause  any  abridgment  or  annulment  of  the  copyright  or 
to  authorize  any  use  or  appropriation  of  such  copyright 
material  without  the  consent  of  the  copyright  proprietor. 

Sec.  8.  That  the  author  or  proprietor  of  any  work  made 
the  subject  of  copyright  by  this  Act,  or  his  executors, 
administrators,  or  assigns,  shall  have  copyright  for  such 
work  under  the  conditions  and  for  the  terms  specified  in 
this  Act:  Provided,  however.  That  the  copyright  secured 
by  this  Act  shall  extend  to  the  work  of  an  author  or  pro- 
prietor who  is  a  citizen  or  subject  of  a  foreign  state  or 
nation,  only: 

(a)  When  an  alien  author  or  proprietor  shall  be  domi- 
ciled within  the  United  States  at  the  time  of  the  first 
publication  of  his  work;  or 

(6)  When  the  foreign  state  or  nation  of  which  such 
author  or  proi)rietor  is  a  citizen  or  subject  grants,  either 
by  treaty,  convention,  agreement,  or  law,  to  citizens  of 
the  United  States  the  benefit  of  copyright  on  substantially 
the  same  basis  as  to  its  own  citizens,  or  copyright  pro- 
tection substantially  equal  to  the  protection  secured  to 
such  foreign  author  under  this  Act  or  by  tn^aty;  or  when 
siu'h  foreign  stat,(;  or  nation  is  a  party  to  an  international 


APPENDIX 


083 


aKrcoinont  which  pnjvides  for  reciprocity  in  the  granting 
of  copyright,  by  the  terms  of  which  agreement  the  United 
States  may,  at  its  pleasure,  become  a  party  thereto. 

Tlio  existence  of  the  reciprocal  conditions  aforesaid 
shall  be  (letcrniincd  by  the  President  of  the  United  States, 
by  proclamation  made  from  time  to  time,  as  the  purposes 
of  this  Act  may  rccjuirc. 

Skc.  9.  That  any  person  entitled  thereto  by  this  Act 
may  secure  copyright  for  his  work  by  publication  thereof 
with  the  notice  of  copyright  required  by  this  Act;  and 
such  notice  shall  be  affixed  to  each  copy  thereof  i)ublished 
or  ofTered  for  sale  in  the  United  States  by  authority  of 
the  cop>Tight  proprietor,  except  in  the  case  of  l)ooks 
seeking  ad  interim  protection  under  section  twenty-one 
of  this  Act. 

Sec.  10.  That  such  person  may  obtain  registration  of 
his  claim  to  copyright  by  complying  with  the  provisions 
of  this  Act,  including  the  deposit  of  copies,  and  upon  such 
compliance  the  register  of  copyrights  shall  issue  to  hnii 
the  certificate  provided  for  in  section  fifty-five  of  this 
Act. 

Sec.  11.  That  cojiyright  may  also  be  had  of  the  works 
of  an  author  of  which  coi)ies  are  not  reproduced  for  sale, 
by  the  deposit,  willi  claim  of  copyright,  of  one  complete 
copy  of  such  work  if  it  be  a  liM-ture  or  similar  production 
or  a  dramatic,  musical,  or  drainatico-musical  composition; 
()/  a  tillc  and  description,  with  one  print  taken  from  each 
scene  or  ad,  if  the  icork  be  a  motion-picture  photoplay :  of 
a  ]ihotogra])hic  ]>rint  if  the  work  be  a  photograph;  of  a 
title  and  dc,-<criplion,  with  not  less  than  two  prints  taken 
from  different  sections  of  a  complete  motion  picture,  if  the 


684  APPENDIX 

work  he  a  motion  picture  other  than  a  photoplay;  ^  or  of  a 
photograph  or  other  identifying  reproduction  thereof,  if 
it  be  a  work  of  art  or  a  plastic  work  or  drawing.  But 
the  privilege  of  registration  of  copyright  secured  here- 
under shall  not  exempt  the  copyiight  proprietor  from 
the  deposit  of  copies,  under  sections  twelve  and  thirteen 
of  this  Act,  where  the  work  is  later  reproduced  in  copies 
for  sale. 

Sec.  12.  That  after  copyright  has  been  secured  by  pub- 
lication of  the  work  with  the  notice  of  copjTight  as  pro- 
vided in  section  nine  of  this  Act,  there  shall  be  promptly 
deposited  in  the  copyright  office  or  in  the  mail  addressed 
to  the  register  of  copyrights,  Washington,  District  of 
Columbia,  two  complete  copies  of  the  best  edition  thereof 
then  published,  or  if  the  work  is  by  an  author  who  is  a  citi- 
zen or  subject  of  a  foreign  state  or  nation  and  has  been  pub- 
lished in  a  foreign  country,  one  complete  copy  of  the  best 
edition  then  published  in  such  foreign  country,  which  copies 
or  copy,-  if  the  work  be  a  book  or  periodical,  shall  have 
been  produced  in  accordance  with  the  manufacturing  pro- 
visions specified  in  section  fifteen  of  this  Act;  or  if  such 
work  be  a  contribution  to  a  periodical,  for  which  con- 
tribution special  registration  is  requested,  one  copy  of  the 
issue  or  issues  containing  such  contribution;  or  if  the 
work  is  not  reproduced  in  copies  for  sale,  there  shall  be 
deposited  the  copy,  print,  photograph,  or  other  identify- 

'  The  words  printed  iu  italics  indicate  the  ainenchncjiits  authorized 
by  the  amendatory  Act  of  AiiRUst  24,  Ii)12. 

^TIk!  words  printed  in  itahcs  in  sec.  12  are  inserted  l)y  tlie  amenda- 
tory Act  of  Mar.  2S,  1<)1 1,  which  also  provides  "Tiiat  all  Acts  or  parts 
of  Acts  in  conflict  with  the  provisions  of  this  Act  are  hereby  repealed." 


APPENDIX  685 

ing  reproduction  provided  by  section  eleven  of  this  Act, 
such  copies  or  copy,  print,  photograph,  or  other  reproduc- 
tion to  be  accompanied  in  each  case  by  a  chiini  of  copy- 
rigiit.  No  action  or  proceeding  shall  be  maintained  for 
infringement  of  copyright  in  any  work  until  the  provi- 
sions of  this  Act  with  respect  to  the  deposit  of  copies  and 
registration  of  such  work  shall  have  been  complied  with. 

Sec.  13.  That  should  the  cojjies  called  for  by  section 
twelve  of  this  Act  not  be  promptly  deposited  as  herein 
provided,  the  register  of  copjTights  may  at  any  time 
aft(T  the  publication  of  the  work,  upon  actual  notice, 
reciuii'e  the  proprietor  of  the  copjTight  to  deposit  them, 
and  after  the  said  demand  shall  have  been  made,  in  de- 
fault of  the  deposit  of  copies  of  the  work  within  tliree 
months  from  any  part  of  the  United  States,  except  an  out- 
lying territorial  possession  of  the  United  States,  or  within 
six  months  from  any  outlying  territorial  possession  of  the 
United  States,  or  from  any  foreign  countr}',  the  proprie- 
tor of  the  copjTight  shall  be  lial)le  to  a  fine  of  one  hun- 
dred dollars  and  to  pay  to  the  Library  of  Congress  t^^^ce 
the  amount  of  the  retail  i)rice  of  the  best  edition  of  the 
work,  and  the  copyright  shall  become  void. 

Sec.  14.  That  the  postmaster  to  whom  are  delivered 
the  articles  deposited  as  provided  in  sections  eleven  and 
twelve  of  this  act  shall,  if  recjuested,  give  a  receipt  there- 
for and  shall  mail  them  to  their  destination  without  cost 
to  the  copyright  claimant. 

Sec.  15.  That  of  the  printed  book  or  periodical  speci- 
fied in  section  five,  subsections  (a)  and  (b)  of  this  act, 
(^xcept  the  original  text  of  a  book  of  foreign  origin  in  a 
language  or  languages  other  than  English,  the  text  of  all 


686  APPENDIX 

copies  accorded  protection  under  this  act,  except  as  below 
provided,  shall  be  printed  from  type  set  within  the  limits 
of  the  United  States,  either  by  hand  or  by  the  aid  of  any 
kind  of  typesetting  machine,  or  from  plates  made  within 
the  Umits  of  the  United  States  from  type  set  therein,  or, 
if  the  text  be  produced  by  Uthographic  process,  or  photo- 
engraving process,  then  by  a  process  wholly  performed 
within  the  limits  of  the  United  States,  and  the  printing 
of  the  text  and  binding  of  the  said  book  shall  be  per- 
formed within  the  Umits  of  the  United  States;  which 
requirements  shall  extend  also  to  the  illustrations  within 
a  book  consisting  of  printed  text  and  illustrations  pro- 
duced by  lithographic  process,  or  photo-engraving  process, 
and  also  to  separate  lithographs  or  photo-engravings,  ex- 
cept where  in  eithef  case  the  subjects  represented  are 
located  in  a  foreign  country  and  illustrate  a  scientific 
work  or  reproduce  a  work  of  art;  but  they  shall  not  apply 
to  works  in  raised  characters  for  the  use  of  the  bUnd,  or  to 
books  of  foreign  origin  in  a  language  or  languages  other 
than  English,  or  to  books  published  abroad  in  the  English 
language  seeking  ad  interim  protection  under  this  act. 

Sec.  1G.  That  in  the  case  of  the  book  the  copies  so  de- 
posited shall  be  accompanied  by  an  affidavit,  under  the 
official  seal  of  any  officer  authorized  to  administer  oaths 
within  the  United  States,  duly  made  by  the  person  claim- 
ing copyright  or  by  his  duly  authorized  agent  or  represen- 
tative residing  in  the  United  States,  or  by  the  printer  who 
has  printed  the  book,  setting  forth  that  the  co])ies  de- 
posited have  been  printed  from  type  set  within  th(^  limits 
of  the  United  States  or  from  plates  made  within  the  limits 
of  the  United  States  from  type  set  therein;  or,  if  the  text 


APPENDIX  (587 

be  producod  by  lithograpliic  process,  or  photo-engraving 
process,  that  such  process  was  wholly  performed  within 
the  limits  of  the  United  States,  and  that  the  printing  of 
the  text  and  binding  of  the  said  Ijook  have  also  been 
performed  within  the  limits  of  the  United  States.  Such 
aflidavit  shall  state  also  the  place  where  and  the  establish- 
ment or  establishments  in  which  such  type  was  set  or 
plates  were  made  or  lithographic  process,  or  photo- 
engraving process  or  printing  and  binding  were  performed 
and  the  date  of  the  completion  of  the  printing  of  the  book 
or  the  date  of  pubHcation. 

Sec.  17.  That  any  person  who,  for  the  purpose  of  ob- 
taining registration  of  a  claim  to  copyright,  shall  know- 
ingly make  a  false  affidavit  as  to  his  having  comi)lied 
with  the  above  conditions  shall  be  deemed  guilty  of  a 
misdemeanor,  and  upon  conviction  thereof  shall  be  pun- 
ished by  a  fine  of  not  more  than  one  thousand  dollars, 
and  all  of  his  rights  and  privileges  under  said  copyright 
shall  thereafter  be  forfeited. 

Sec.  is.  That  the  notice  of  copyright  required  by  sec- 
tion nine  of  this  act  shall  consist  either  of  the  word 
"Copyright"  or  the  abbn^viation  ''Copr.,"  accompanied 
by  the  name  of  the  copjTight  i)roprietor,  and  if  the  work 
be  a  printed  literar}',  musical,  or  dramatic  work,  the 
notice  shall  include  also  the  year  in  which  the  cop>Tight 
was  secured  by  publication.  In  the  case,  however,  of 
copies  of  works  specified  in  subsections  (f)  to  (k),  inclu- 
sive, of  section  five  of  this  act,  the  notice  may  consist 
of  the  letter  C  inclosed  within  a  circle,  thus:  0>  accom- 
panied by  the  initials,  monogram,  mark,  or  symbol  of  the 
copyright  proprietor:  Provided,  That  on  some  accessible 


688  APPENDIX 

portion  of  such  copies  or  of  the  margin,  back,  permanent 
base,  or  pedestal,  or  of  the  substance  on  which  such  copies 
shall  be  mounted,  his  name  shall  appear.  But  in  the  case 
of  works  in  which  copyright  is  subsisting  when  this  act 
shall  go  into  effect,  the  notice  of  copyright  may  be  either 
in  one  of  the  forms  prescribed  herein  or  in  one  of  those 
prescribed  by  the  Act  of  June  eighteenth,  eighteen  hun- 
dred and  seventy-four. 

Sec.  19.  That  the  notice  of  copyright  shall  be  applied, 
in  the  case  of  a  book  or  other  printed  publication,  upon 
its  title-page  or  the  page  immediately  following,  or  if  a 
periodical  either  upon  the  title-page  or  upon  the  first 
page  of  text  of  each  separate  number  or  under  the  title 
heading,  or  if  a  musical  work  either  upon  its  title-page 
or  the  first  page  of  music:  Provided,  That  one  notice  of 
copyright  in  each  volume  or  in  each  number  of  a  news- 
paper or  periodical  published  shall  suffice. 

Sec.  20.  That  where  the  copyi'ight  proprietor  has 
sought  to  comply  with  the  provisions  of  this  Act  with 
respect  to  notice,  the  omission  by  accident  or  mistake  of 
the  prescribed  notice  from  a  particular  copy  or  copies 
shall  not  invalidate  the  copyi'ight  or  prevent  recovery 
for  infringement  against  any  person  who,  after  actual 
notice  of  the  copyright,  begins  an  undertaking  to  infringe 
it,  but  shall  prevent  the  recovery  of  damages  against  an 
innocent  infringer  who  has  been  misled  l)y  the  omission  of 
the  notice;  and  in  a  suit  for  infringement  no  permanent 
injunction  shall  be  had  unless  the  copyright  i)r()pri('t<)r 
sliall  reiml)urse  to  tin;  innocent  infringer  his  reasonable 
outlay  innocently  incurred  if  the  court,  in  its  discretion, 
shall  so  direct. 


APPENDIX  089 

Sec.  21.  Tluit  in  the  case  of  a  book  published  abroad  in 
the  English  language  before  publication  in  this  country, 
the  deposit  in  ihc  copyright  oflico,  not  later  than  thirty 
days  after  its  publication  abroad,  of  one  complete  copy 
of  the  foreign  edition,  with  a  request  for  the  reservation 
of  the  copyright  and  a  .statement  of  the  name  and  nation- 
ality of  the  author  and  of  the  cop>Tight  proprietor  and  of 
the  date  of  puljlication  of  the  said  book,  shall  .secure  to 
the  author  or  proprietor  an  ad  interim  copyright,  which 
shall  have  all  the  force  and  effect  given  to  copyright  l)y 
this  Act,  and  shall  endure  until  the  expiration  of  thirty 
days  after  such  deposit  in  the  copyright  office. 

Sec.  22.  That  whenever  within  the  period  of  such  ad 
interim  protection  an  authorized  edition  of  such  book 
shall  be  published  within  the  United  States,  in  accordance 
with  the  manufacturing  provisions  specified  in  section 
fifteen  of  this  Act,  and  whenever  the  provisions  of  this 
Act  as  to  deposit  of  copies,  registration,  filing  of  affidavit, 
and  the  printing  of  the  copyright  notice  shall  have  been 
duly  complied  with,  the  copyright  shall  be  extended  to 
endure  in  such  book  for  the  full  term  elsewhere  provided 
in  this  Act. 

Sec.  23.  That  the  copyright  secured  by  this  Act  shall 
endure  for  twenty-eight  years  from  the  date  of  first  pub- 
lication, whether  the  copyrighted  work  bears  the  author's 
true  name  or  is  published  anonymously  or  under  an  a.s- 
sumed  name:  Provided,  That  in  the  case  of  any  posthu- 
mous work  or  of  any  i)eri()dical,  cydopiedic,  or  other  com- 
posite work  upon  which  the  copyright  was  originally 
secured  by  the  proprietor  thereof,  or  of  any  work  copy- 
righted by  a  corporate  body  (otherwise  than  as  assignee 


690  APPENDIX 

or  licensee  of  the  individual  author)  or  by  an  employer 
for  whom  such  work  is  made  for  hire,  the  proprietor  of 
such  copyright  shall  be  entitled  to  a  renewal  and  exten- 
sion of  the  copyright  in  such  work  for  the  further  term 
of  twenty-eight  years  when  application  for  such  renewal 
and  extension  shall  have  been  made  to  the  copyright 
office  and  duly  registered  therein  within  one  year  prior 
to  the  expiration  of  the  original  term  of  copyright:  And 
provided  further,  That  in  the  case  of  any  other  copy- 
righted work,  including  a  contribution  by  an  individual 
author  to  a  periodical  or  to  a  cyclopaedic  or  other  compos- 
ite work  when  such  contribution  has  been  separately  reg- 
istered, the  author  of  such  work,  if  still  living,  or  the 
widow,  widower,  or  children  of  the  author,  if  the  author 
be  not  living,  or  if  such  author,  widow,  widower,  or  chil- 
dren be  not  living,  then  the  author's  executors,  or  in  the 
absence  of  a  will,  his  next  of  kin  shall  be  entitled  to  a 
renewal  and  extension  of  the  copyright  in  such  work  for 
a  further  term  of  twenty-eight  years  when  application 
for  such  renewal  and  extension  shall  have  been  made  to 
the  copjTight  office  and  duly  registered  therein  within 
one  year  prior  to  the  expiration  of  the  original  term  of 
copyright :  A  nd  provided  further,  That  in  default  of  the 
registration  of  such  application  for  renewal  and  exten- 
sion, the  copyright  in  any  work  shall  determine  at 
the  expiration  of  twenty-eight  years  from  first  publica- 
tion. 

Sp:c.  24.  That  the  copyright  subsisting  in  any  work  at 
the  time  when  this  Act  goes  into  effect  may,  at  the  expira- 
tion of  the  term  provided  for  under  existing  law,  be 
renewed  and  extended  by  the  autlior  of  such  work  if  still 


APPENDIX  <>'H 

li\iiig,  or  tlio  widow,  widower,  or  rhildron  of  tho  author, 
if  the  author  he  not  living,  or  if  such  autlior,  widow, 
widowor,  or  ciiikh-on  he  not  hvinj^,  then  hy  the  author's 
executors,  or  in  the  absence  of  a  will,  his  next  of  kin, 
for  a  further  period  such  that  the  entire  term  shall  be 
equal  to  that  secured  by  this  Act,  including  the  renewal 
l)eri()d:  Proridcd,  Jtourrcr,  That  if  the  work  be  a  com- 
posite work  upon  wliich  copyright  was  originally  secured 
by  the  proprietor  thereof,  then  such  proprietor  shall  be 
entitled  to  the  privilege  of  renewal  and  extension  granted 
under  this  section:  Provided,  That  application  for  such 
renewal  and  extension  shall  be  made  to  the  copyright 
ofFice  and  duly  registered  therein  within  one  year  prior  to 
the  expiration  of  the  existing  term. 

Sec.  25.  That  if  any  person  shall  infringe  the  copyright 
in  any  work  protected  under  the  copyright  laws  of  the 
United  States  such  person  shall  be  liable: 

(a)  To  an  injunction  restraining  such  infringement; 

(6)  To  pay  to  the  copyright  proi)rietor  such  damages 
as  the  copyright  proprietor  may  have  suffered  due  to  the 
infringement,  as  well  as  all  the  profits  which  the  infringer 
shall  have  made  from  such  infringement,  and  in  proving 
profits  the  plaintiff  shall  be  required  to  prove  sales  only 
and  the  defendant  shall  be  required  to  prove  every  ele- 
ment of  cost  which  he  claims,  or  in  lieu  of  actual  damages 
and  profits  such  damages  as  to  the  court  shall  appear  to 
be  just,  and  in  assessing  such  damages  the  court  may,  in 
its  discretion,  allow  the  amounts  as  hereinafter  stated, 
but  in  '  case  of  a  newspaper  reproduction  of  a  coj)y- 

'  Tlu;  word  "tho"  before  the  words  "case  of  a  newspaper  reproduc- 
tion," etc.,  was  struck  out  l>y  the  amendatory  .\ct  of  August  24,  1912. 


(392  APPENDIX 

righted  photograph  such  damages  shall  not  exceed  the 
sum  of  two  hundred  dollars  nor  be  less  than  the  sum 
of  fifty  dollars,  and  in  the  case  of  the  infringement  of  an 
undramatized  or  nondramatic  work  hy  means  of  motion 
pictures,  where  the  infringer  shall  show  that  he  was  not 
aware  that  he  was  infringing,  and  that  such  infringement 
could  not  have  been  reasonably  foreseen,  such  damages 
shall  not  exceed  the  sum  of  one  hundred  dollars;  and  in 
the  case  of  an  infringement  of  a  copyrighted  dramatic  or 
dramatico-musical  work  by  a  maker  of  motion  pictures  and 
his  agencies  for  distribution  thereof  to  exhibitors,  where  such 
infringer  shows  that  he  was  not  aware  that  he  was  infringing 
a  copyrighted  work,  and  that  such  infringements  could  not 
reasonably  have  been  foreseen,  the  entire  sum  of  such  dam- 
ages recoverable  by  the  copyright  proprietor  from  such  in- 
fringing maker  and  his  agencies  for  the  distribution  to 
exhibitors  of  such  infringing  motion  picture  shall  not  exceed 
the  sum  of  five  thousand  dollars  nor  be  less  than  two  hundred 
and  fifty  dollars,  and  such  damages  shall  in  no  other  case 
exceed  the  sum  of  five  thousand  dollars  nor  be  less  than 
the  sum  of  two  hundred  and  fifty  dollars,  and  shall  not 
be  regarded  as  a  penalty.  But  the  foregoing  exceptions 
shall  not  deprive  the  copyright  proprietor  of  any  other  remedy 
given  him  under  this  law,  nor  shall  the  limitation  as  to  the 
amount  of  recovery  apply  to  infringements  occurring  after 
the  actual  notice  to  a  defendant,  either  by  service  of  process 
in  a  suit  or  other  written  notice  served  upon  him} 

First.  In  the  case  of  a  painting,  statue,  or  sculp- 
ture, ten  dollars  for  every  infringing  c()j)y  made  or 

'  Tlic  words  printod  in  italics  indicato  the  amendments  authorized 
hy  tlic  uinondutor}'  Act  of  Aiij^ust  21,  l'.)12. 


APPENDIX  003 

sold  by  or  found  in  tlic  possession  (jf  the  infringer 
or  his  agents  or  employees; 

Second.  In  the  case  of  any  work  enumerated  in 
section  five  of  this  Act,  except  a  painting;,  statue,  or 
sculpture,  one  dollar  for  every  infringing;  copy  made 
or  sold  by  or  found  in  the  possession  of  the  infringer 
or  his  agents  or  employees; 

Third.  In  the  case  of  a  lecture,  sermon,  or  ad- 
dress, fifty  dollars  for  every  infringing  delivery; 

Fourth.  In  the  case  of  a  dramatic  or  dramatico- 
musical  or  a  choral  or  orchestral  composition,  one 
hundred  dollars  for  the  first  and  fifty  dollars  for 
every  subsequent  infringing  performance;  in  the 
case  of  other  musical  compositions,  ten  dollars  for 
every  infringing  performance; 

(c)  To  deliver  up  on  oath,  to  be  impounded  during 
the  pendency  of  the  action,  upon  such  terms  and  condi- 
tions as  the  court  may  prescribe,  all  articles  alleged  to 
infringe  a  copyright; 

(d)  To  deliver  up  on  oath  for  destruction  all  the  in- 
fringing copies  or  devices,  as  well  as  all  plates,  molds, 
matrices,  or  other  means  for  making  such  infringing 
copies  as  the  court  may  order; 

(e)  Whenever  the  owner  of  a  musical  copyright  has 
used  or  permitted  the  use  of  the  copyrighted  work  upon 
the  parts  of  musical  instruments  serving  to  reproduce 
mechanically  the  musical  work,  then  in  case  of  infringe- 
ment of  such  copyright  by  the  unauthorized  manufac- 
ture, use,  or  sale  of  interchangcal)le  parts,  such  as  disks, 
rolls,  bands,  or  cylinders  for  use  in  mechanical  music- 
producing  machines  adapted  to  reproduce  the  copyrighted 


694  APPENDIX 

music,  no  criminal  action  shall  be  brought,  but  in  a  civil 
action  an  injunction  may  be  granted  upon  such  terms 
as  the  court  may  impose,  and  the  plaintiff  shall  be  entitled 
to  recover  in  lieu  of  profits  and  damages  a  royalty  as  pro- 
vided in  section  one,  subsection  (e),  of  this  Act:  Provided 
also,  That  whenever  any  person,  in  the  absence  of  a  license 
agreement,  intends  to  use  a  copyrighted  musical  composi- 
tion upon  the  parts  of  instruments  serving  to  reproduce 
mechanically  the  musical  work,  relying  upon  the  com- 
pulsory license  provision  of  this  Act,  he  shall  serve  notice 
of  such  intention,  by  registered  mail,  upon  the  copyright 
proprietor  at  his  last  address  disclosed  by  the  records  of 
the  copyright  office,  sending  to  the  copyright  office  a  dupli- 
cate of  such  notice;  and  in  case  of  his  failure  so  to  do  the 
court  may,  in  its  discretion,  in  addition  to  sums  hereinabove 
mentioned,  award  the  complainant  a  further  sum,  not  to 
exceed  three  times  the  amount  provided  by  section  one, 
subsection  (e),  by  way  of  damages,  and  not  as  a  penalty, 
and  also  a  temporary  injunction  until  the  full  award  is  paid. 

Rules  and  regulations  for  practice  and  procedure  under 
this  section  shall  be  prescribed  by  the  Supreme  Court  of 
the  United  States. 

Sec.  26.  That  any  court  given  jurisdiction  under  sec- 
tion thirty-four  of  this  Act  may  proceed  in  any  action, 
suit,  or  proceeding  instituted  for  violation  of  an}^  ])ro- 
vision  hereof  to  enter  a  judgment  or  decree  enforcing  the 
remedies  herein  provided. 

Sec.  27.  That  the  proceedings  for  an  injunction,  dam- 
ages, and  profits,  and  those  for  the  seizure  of  infringing 
(•()))i('s,  |)hit('s,  molds,  matrices,  and  so  forth,  afonunea- 
tioned,  may  be  united  in  one  action. 


APPENDIX  695 

Sec.  28.  That  any  })ors()ii  who  wiUfuU}'  and  for  profit 
shall  infringe  any  copyright  secured  by  this  Act,  or  who 
shall  knowingly  and  willfully  aid  or  abet  such  infringe- 
nuMit,  shall  bo  deemed  guilty  of  a  misdemeanor,  and  upon 
conviction  thereof  shall  be  punished  In'  iinjirisonment  for 
not  exceeding  one  year  or  by  a  fine  of  not  less  than  one 
hundred  dollars  nor  more  than  one  thousand  dollars,  or 
both,  in  the  discretion  of  the  court:  Provided,  however, 
That  nothing  in  this  Act  shall  be  so  construed  as  to  pre- 
vent the  performance  of  religious  or  secular  works,  such 
as  oratorios,  cantatas,  masses,  or  octavo  choruses  by  ])ub- 
lic  schools,  church  choirs,  or  vocal  societies,  rented,  bor- 
rowed, or  obtained  from  some  public  library',  public 
school,  church  choir,  school  choir,  or  vocal  society,  pro- 
vided the  performance  is  given  for  charitable  or  educa- 
tional purposes  and  not  for  profit. 

Sec.  29.  That  any  person  who,  with  fraudulent  intent, 
shall  insert  or  impress  any  notice  of  ct)pyright  required 
by  this  Act,  or  words  of  the  same  pm-port,  in  or  upon  any 
uncopjTighted  article,  or  with  fraudulent  intent  shall 
remove  or  alter  the  copyright  notice  upon  any  article  duly 
copyrighted  shall  be  guilty  of  a  misdemeanor,  punishable 
by  a  fine  of  not  less  than  one  hundred  dollars  and  not 
more  than  one  thousand  dollars.  Any  person  who  shall 
knowingly  issue  or  sell  any  article  bearing  a  notice  of 
United  States  copjTight  which  has  not  been  copyrighted 
in  this  country,  or  who  shall  knowingly  import  any  ar- 
ticle bearing  such  notice  or  words  of  the  same  puri^ort, 
which  has  not  been  cop>Tighted  in  this  country-,  shall 
be  liai)le  to  a  fine  of  one  hundred  dollars. 

Sec.  30.  That  the  importation  into  the  United  States 


696  APPENDIX 

of  any  article  bearing  a  false  notice  of  copyright  when 
there  is  no  existing  copyright  thereon  in  the  United 
States,  or  of  any  piratical  copies  of  any  work  copyrighted 
in  the  United  States,  is  prohibited. 

Sec.  31.  That  during  the  existence  of  the  American 
copyright  in  any  book  the  importation  into  the  United 
States  of  any  piratical  copies  thereof  or  of  any  copies 
thereof  (although  authorized  by  the  author  or  proprie- 
tor) which  have  not  been  produced  in  accordance  with 
the  manufacturing  provisions  specified  in  section  fifteen 
of  this  Act,  or  any  plates  of  the  same  not  made  from  type 
set  within  the  limits  of  the  United  States,  or  any  copies 
thereof  produced  by  lithographic  or  photo-engraving 
process  not  performed  within  the  limits  of  the  United 
States,  in  accordance  with  the  provisions  of  section 
fifteen  of  this  Act,  shall  be,  and  is  hereby,  prohibited: 
Provided,  however,  That,  except  as  regards  piratical 
copies,  such  prohibition  shall  not  apply: 

(a)  To  works  in  raised  characters  for  the  use  of  the 
blind; 

(6)  To  a  foreign  newspaper  or  magazine,  although 
containing  matter  copyrighted  in  the  United  States 
printed  or  reprinted  by  authority  of  the  co})}Tight  pro- 
prietor, unless  such  newspaper  or  magazine  contains  also 
copyright  matter  printed  or  reprinted  without  such  au- 
thorization: 

(c)  To  the  authorized  edition  of  a  book  in  a  foreign 
language  or  languages  of  which  only  a  translation  into 
I'^nglish  has  been  coiwrighted  in  tliis  country; 

((I)  To  any  book  published  al)road  with  the  authoriza- 
tion of  the  author  or  ('oi)yright  proprietor  when  imported 


APPENDIX  097 

under  the  circumstances  stated  in  one  of  the  four  subdi- 
visions following,  that  is  to  say: 

First.  When  inii)orted,  not  more  than  one  copy 
at  one  time,  for  individual  use  and  not  for  sale;  but 
sucli  privilege  of  inii)ortation  shall  not  extend  to  a 
foreign  reprint  of  a  book  by  an  American  author 
copyrighted  in  the  United  States; 

Second.  When  imported  by  the  authority  or  for 
the  use  of  the  United  States; 

Third.  ^Mien  imported,  for  use  and  not  for  sale, 
not  more  than  one  copy  of  any  such  book  in  any 
one  invoice,  in  good  faith,  by  or  for  any  society  or 
institution  incorporated  for  educational,  hterarj', 
philosophical,  scientific,  or  religious  purposes,  or 
for  the  encouragement  of  the  fine  arts,  or  for  any 
college,  academy,  school,  or  seminary  of  learning, 
or  for  any.  State,  school,  college,  university,  or  free 
public  library  in  the  United  States; 

Fourth.  When  such  books  form  parts  of  libraries 
or  collections  piu*chased  en  bloc  for  the  use  of  so- 
cieties, institutions,  or  libraries  designated  in  the 
foregoing  jiaragraph,  or  form  parts  of  the  libraries 
or  personal  baggage  belonging  to  persons  or  fami- 
lies arriving  from  foreign  countries  and  are  not 
intended  for  sale: 

Pruridcd,  That  copies  imported  as  above  may 
not  lawfully  be  used  in  any  way  to  violate  the  rights 
of  the  jiroprietor  of  the  .Vmerican  copjTight  or 
annul  or  limit  the  cop>Tight  protection  secured  by 
this  Act,  and  such  unlawful  use  shall  be  deemed  an 
infringement  of  copyright. 


698  APPENDIX 

Sec.  32.  That  any  and  all  articles  prohibited  importa- 
tion by  this  Act  which  are  brought  into  the  United  States 
from  any  foreign  country  (except  in  the  mails)  shall  be 
seized  and  forfeited  by  like  proceedings  as  those  provided 
by  law  for  the  seizure  and  condemnation  of  property 
imported  into  the  United  States  in  violation  of  the  cus- 
toms revenue  laws.  Such  articles  when  forfeited  shall  be 
destroyed  in  such  manner  as  the  Secretary  of  the  Treasury 
or  the  court,  as  the  case  may  be,  shall  direct:  Provided, 
however,  That  all  copies  of  authorized  editions  of  copy- 
right books  imported  in  the  mails  or  otherwise  in  viola- 
tion of  the  provisions  of  this  Act  may  be  exported  and 
returned  to  the  country  of  export  whenever  it  is  shown 
to  the  satisfaction  of  the  Secretary  of  the  Treasury,  in  a 
WTitten  application,  that  such  importation  does  not  in- 
volve willful  negligence  or  fraud. 

Sec.  33.  That  the  Secretary  of  the  Treasury  and  the 
Postmaster-General  are  hereby  empowered  and  requh'ed 
to  make  and  enforce  such  joint  rules  and  regulations  as 
shall  prevent  the  importation  into  the  United  States  in 
the  mails  of  articles  prohibited  importation  by  this  Act, 
and  may  require  notice  to  be  given  to  the  Treasury  De- 
I)artment  or  Post-OfTice  Department,  as  the  case  may  be, 
by  copyright  i)roprietors  or  injured  parties,  of  the  actual 
or  cf)nt('iiii)lated  importation  of  articles  prohibited  im- 
portation by  this  Act,  and  which  infringe  the  rights  of 
such  copyright  proprietors  or  injured  parties. 

Sec.  34.  That  all  actions,  suits,  or  proceedings  arising 
under  the  copyright  laws  of  the  United  States  shall  be 
originally  cogiii/.-iMcr  by  the  circuit  courts  of  the  United 
States,  the  district  court  of  any  Territory,  the  supreme 


APPENDIX  699 

court  of  tlic  District  of  Columbia,  the  district  courts  of 
Alaska,  Hawaii,  and  Porto  Rico,  and  the  courts  of  first 
instance  of  the  Philippine  Islands. 

Sec.  35.  That  civil  actions,  suits,  or  proceedings  arising 
under  this  Act  may  be  instituted  in  the  district  of  which 
the  defendant  or  his  agent  is  an  inhabitant,  or  in  which 
he  may  be  found. 

Sec.  3G.  That  any  such  court  or  judge  thereof  shall 
have  power,  upon  bill  in  equity  filed  by  any  party  ag- 
gi-icved,  to  grant  injunctions  to  prevent  and  restrain  the 
violation  of  any  right  secured  by  said  laws,  according  to 
the  course  and  principles  of  courts  of  equity,  on  such 
terms  as  said  court  or  judge  may  deem  reasonable.  Any 
injunction  that  may  bo  granted  restraining  and  enjoining 
the  doing  of  anything  forl^idden  by  this  Act  may  be 
served  on  the  parties  against  whom  such  injunction  may 
be  granted  anj-^vhcre  in  the  United  States,  and  shall  be 
operative  throughout  the  United  States  and  be  enforce- 
able by  proceedings  in  contempt  or  otherwise  by  any 
other  court  or  judge  possessing  jurisdiction  of  the  de- 
fendants. 

Sec.  37.  That  the  clerk  of  the  court,  or  judge  granting 
the  injunction,  shall,  when  required  so  to  do  by  the 
court  hearing  the  a])plication  to  enforce  said  injunction, 
transmit  without  delay  to  said  court  a  certified  copy 
of  all  the  papers  in  said  cause  that  are  on  file  in  his 
office. 

Sec.  3S.  That  the  orders,  judgnients,  or  decrees  of  any 
court  mentioned  in  section  thirty-four  of  this  Act  arising 
under  the  coj)yright  laws  of  the  United  States  may  he 
reviewed  on  appeal  or  writ  of  error  in  the  manner  and  to 


700  APPENDIX 

the  extent  now  provided  by  law  for  the  review  of  cases 
determined  in  said  courts,  respectively. 

Sec.  39.  That  no  criminal  proceeding  shall  be  main- 
tained under  the  provisions  of  this  Act  unless  the  same  is 
commenced  within  three  years  after  the  cause  of  action 
arose. 

Sec.  40.  That  in  all  actions,  suits,  or  proceedings  under 
this  Act,  except  when  brought  by  or  against  the  United 
States  or  any  officer  thereof,  full  costs  shall  be  allowed, 
and  the  court  may  award  to  the  prevailing  party  a  reason- 
able attorney's  fee  as  part  of  the  costs. 

Sec.  41.  That  the  copyright  is  distinct  from  the  prop- 
erty in  the  material  object  copyrighted,  and  the  sale  or 
conveyance,  by  gift  or  otherwise,  of  the  material  object 
shall  not  of  itself  constitute  a  transfer  of  the  copjTight, 
nor  shall  the  assignment  of  the  copyright  constitute  a 
transfer  of  the  title  to  the  material  object;  but  nothing  in 
this  Act  shall  be  deemed  to  forbid,  prevent,  or  restrict 
the  transfer  of  any  copy  of  a  copyrighted  work  the  pos- 
session of  w^hich  has  been  lawfully  obtained. 

Sec.  42.  That  copyright  secured  under  this  or  previous 
Acts  of  the  United  States  may  be  assigned,  granted,  or 
mortgaged  by  an  instrument  in  writing  signed  by  the 
proprietor  of  the  copyright,  or  mav  be  bequeathed  by 
will. 

Sec.  43.  That  every  assignment  of  copyright  executed 
in  a  foreign  country  shall  be  acknowledged  by  the  as- 
signor before  a  consular  officer  or  secretary  of  legation  of 
the  United  States  authorized  by  law  to  administer  oaths 
or  perform  notarial  acts.  The  certificate  of  sudi  ac- 
knowledgment under  the  hand  and  official  seal  of  such 


APPENDIX  701 

consular  officer  or  secretary  of  legation  shall  be  ijrima 
facie  evidence  of  the  execution  of  the  instrument. 

Sec.  44.  That  every  assignment  of  copyright  sliall  \)g 
recorded  in  the  copyright  office  within  three  calendar 
months  after  its  execution  in  the  United  States  or  within 
six  calendar  months  after  its  execution  without  the  limits 
of  the  United  States,  in  default  of  which  it  shall  be  void 
as  against  any  subsequent  purcha.ser  or  mortgagee  for  a 
valuable  consideration,  without  notice,  whose  assignment 
has  been  duly  recorded. 

Sec.  45.  That  the  register  of  copyrights  shall,  upon 
pajinent  of  the  prescribed  fee,  record  such  assignment, 
and  shair  return  it  to  the  sender  with  a  certificate  of 
record  attached  under  seal  of  the  copyright  office,  and 
upon  the  pa}Tnent  of  the  fee  prescribed  by  this  Act  he 
shall  furnish  to  any  person  requesting  the  same  a  certified 
copy  thereof  under  the  said  seal. 

Sec.  4G.  That  when  an  assignment  of  the  copyright  in 
a  specified  book  or  other  work  has  been  recorded  the  as- 
signee may  substitute  his  name  for  that  of  the  assignor  in 
the  statutory  notice  of  copyright  prescribed  by  this  Act. 

Sec.  47.  That  all  records  and  other  things  relating  to 
copyrights  required  by  law  to  be  preserved  shall  be  kept 
and  preserved  in  the  copyright  office,  Library  of  Con- 
gress, District  of  Columbia,  and  shall  be  under  the  control 
of  the  register  of  copyrights,  who  shall,  under  the  direc- 
tion and  supervision  of  the  Librarian  of  Congress,  per- 
form all  the  duties  relating  to  the  registration  of  copy- 
rights. 

Sec.  48.  That  there  shall  be  appointed  by  the  Librarian 
of  Congress  a  register  of  copyrights,  at  a  salary  of  four 


702  APPENDIX 

thousand  dollars  per  annum,  and  one  assistant  register  of 
copyrights,  at  a  salary  of  three  thousand  dollars  per 
annum,  who  shall  have  authority  during  the  absence  of 
the  register  of  copyrights  to  attach  the  cop>Tight  office 
seal  to  all  papers  issued  from  the  said  office  and  to  sign 
such  certificates  and  other  papers  as  may  be  necessary. 
There  shall  also  be  appointed  by  the  Librarian  such  sub- 
ordinate assistants  to  the  register  as  may  from  time  to 
time  be  authorized  by  law. 

Sec.  49.  That  the  register  of  copyrights  shall  make 
daily  deposits  in  some  bank  in  the  District  of  Columbia, 
designated  for  this  purpose  by  the  Secretary  of  the  Treas- 
ury as  a  national  depository,  of  all  moneys  received  to 
be  applied  as  copyright  fees,  and  shall  make  weekly  de- 
posits with  the  Secretary  of  the  Treasury  in  such  manner 
as  the  latter  shall  direct,  of  all  copyright  fees  actually 
applied  under  the  provisions  of  this  Act,  and  annual 
deposits  of  sums  received  which  it  has  not  been  possible 
to  apply  as  copyright  fees  or  to  return  to  the  remitters, 
and  shall  also  make  monthly  reports  to  the  Secretary  of 
the  Treasury  and  to  the  Librarian  of  Congress  of  the 
applied  copyright  fees  for  each  calendar  month,  together 
with  a  statement  of  all  remittances  received,  trust  funds 
on  hand,  moneys  refunded,  and  unpaid  balances. 

Sec.  50.  That  the  register  of  copyrights  shall  give  bond 
to  the  United  States  in  the  sum  of  twenty  thousand  dol- 
lars, in  form  to  be  approved  by  the  Solicitor  of  the  Treas- 
ury and  with  sureties  satisfactory  to  tlie  Secretary  of  the 
Treasury,  for  tlie  faithful  discharge  of  liis  duties. 

Sec.  51.  That  the  register  of  copyrights  shall  make  an 
annual  report  to  the  Librarian  of  Congress,  to  be  printed 


APPENDIX  70:i 

in  tlio  annual  report  on  the  Library  of  r'ongre.s.s,  of  all 
copyright  business  for  the  previous  fiscal  year,  including 
the  number  and  kind  of  works  which  have  been  deposited 
in  the  copyright  ollice  during  the  fiscal  year,  under  the 
l)ro visions  of  this  Act. 

Sec.  52.  That  the  seal  provided  under  the  Act  of  July 
eighth,  eighteen  hundred  and  seventy,  and  at  present 
used  in  the  copyright  office,  shall  continue  to  be  the  seal 
tliereof,  and  by  it  all  paj)ers  issued  from  the  copjTight 
office  requiring  authentication  shall  be  authenticated. 

Sec.  53.  That,  subject  to  the  approval  of  the  I.ibrarian 
of  Congress,  the  register  of  copyrights  shall  be  authorized 
to  make  rules  and  regulations  for  the  registration  of 
claims  to  copyright  as  provided  by  this  Act. 

Sec.  54.  That  the  register  of  coi)yrights  shall  provide 
and  keep  such  record  books  in  the  copyright  office  as  are 
re(iuired  to  carry  out  the  pro\isions  of  this  Act,  and 
whenever  deposit  has  been  made  in  the  copyright  office 
of  a  copy  of  any  work  under  the  provisions  of  this  Act 
he  shall  make  entry  thereof. 

Sec.  55.  That  in  the  case  of  each  entry  the  person  re- 
cordetl  as  the  claimant  of  the  copyright  shall  be  entitled 
to  a  certificate  of  registration  under  seal  of  the  copyright 
office,  to  contain  the  name  and  address  of  said  claimant, 
the  name  of  the  country  of  which  the  author  of  the  work 
is  a  citizen  or  subject,  and  when  an  alien  author  domiciled 
in  the  United  States  at  the  time  of  said  registration,  then  a 
statement  of  that  fact,  including  his  place  of  domicile,  the 
name  of  the  author  (when  the  records  of  the  copyright  office 
shall  show  the  same),  the  title  of  the  work  which  is  registered 
for  which  copyright  is  claimed,  the  date  of  the  deposit  of 


704  APPENDIX 

the  copies  of  such  work,  the  date  of  publication  if  the  work 
has  been  reproduced  in  copies  for  sale,  or  publicly  distrib- 
uted, and  such  marks  as  to  class  designation  and  entry 
number  as  shall  fully  identify  the  entry.  In  the  case  of  a 
book  the  certificate  shall  also  state  the  receipt  of  the  affi- 
davit, as  provided  by  section  sixteen  of  this  Act,  and  the 
date  of  the  completion  of  the  printing,  or  the  date  of  the 
publication  of  the  book,  as  stated  in  the  said  affidavit. 
The  register  of  copyrights  shall  prepare  a  printed  form 
for  the  said  certificate,  to  be  filled  out  in  each  case  as 
above  provided  for  in  the  case  of  all  registrations  made 
after  this  Act  goes  into  effect,  and  in  the  case  of  all  previous 
registrations  so  far  as  the  copyright  office  record  books 
shall  show  such  facts,^  which  certificate,  sealed  with  the 
seal  of  the  copyright  office,  shall,  upon  payment  of  the 
prescribed  fee,  be  given  to  any  person  making  application 
for  the  same.  Said  certificate  shall  be  admitted  in  any 
court  as  prima  facie  evidence  of  the  facts  stated  therein. 
In  addition  to  such  certificate  the  register  of  copjTights 
shall  furnish,  upon  request,  without  additional  fee,  a  re- 
ceipt for  the  copies  of  the  work  deposited  to  complete  the 
registration. 

Sec.  56.  That  the  register  of  copyrights  shall  fully 
index  all  copyright  registrations  and  assignments  and 
shall  print  at  periodic  intervals  a  catalogue  of  the  titles 
of  articles  deposited  and  registered  for  copyright,  together 
with  suital)lo  indexes,  and  at  stated  intervals  shall  print 
complete  and  indexed  catalogues  for  each  class  of  copy- 
right entries,  and  may  thereupon,  if  expedient,  destroy 

'  The  words  printed  in  italics  indicate  the  amendments  authorized 
by  th(;  arnondatory  Act  of  March  2,  1913. 


APPENDIX  705 

the  orij^inal  manusrript  catalogue  cards  containing  the 
titles  included  in  sucli  j)rinted  volumes  and  representing 
the  entries  made  during  such  intervals.  The  current  cata- 
logues of  copyright  entries  and  the  index  volumes  herein 
provided  for  shall  be  admitted  in  any  court  as  prima  facie 
evidence  of  the  facts  stated  therein  as  regards  any  copy- 
right registration. 

Sec.  57.  That  the  said  printed  current  catalogues  as 
they  are  issued  shall  be  promptly  distributed  by  the  copy- 
right office  to  the  collectors  of  customs  of  the  United 
States  and  to  the  postmasters  of  all  exchange  offices  of 
receipt  of  foreign  mails,  in  accordance  with  revised  lists 
of  svich  collectors  of  customs  and  postmasters  prepared 
by  the  Secretary  of  the  Treasury  and  the  Postmaster- 
General,  and  they  shall  also  be  furnished  to  all  parties 
desiring  them  at  a  price  to  be  determined  by  the  register 
of  copyrights,  not  exceeding  five  dollars  per  annum  for 
the  complete  catalogue  of  copyright  entries  and  not  ex- 
ceeding one  dollar  per  annum  for  the  catalogues  issued 
during  the  year  for  any  one  class  of  subjects.  The  con- 
solidated catalogues  and  indexes  shall  also  be  supplied  to 
all  persons  ordering  them  at  such  prices  as  may  be  deter- 
mined to  be  reasonable,  and  all  subscriptions  for  the 
catalogues  shall  be  received  by  the  Superintendent  of 
Public  Documents,  who  shall  forward  the  said  publica- 
tions; and  the  moneys  thus  received  shall  be  paid  into  the 
Treasury  of  the  United  States  and  accounted  for  under 
such  laws  and  Treasury  regulations  as  shall  be  in  force 
at  the  time. 

Sec.  58.  That  the  record  books  of  the  copyright  office, 
together  with  the  indexes  to  such  record  books,  and  all 


706  APPENDIX 

works  deposited  and  retained  in  the  copjright  office,  shall 
be  open  to  public  inspection;  and  copies  may  be  taken  of 
the  copyright  entries  actually  made  in  such  record  books, 
subject  to  such  safeguards  and  regulations  as  shall  be 
prescribed  by  the  register  of  copyrights  and  approved  by 
the  Librarian  of  Congress. 

Sec.  59.  That  of  the  articles  deposited  in  the  copyright 
office  under  the  provisions  of  the  copyright  laws  of  the 
United  States  or  of  this  Act,  the  Librarian  of  Congress 
shall  determine  what  books  and  other  articles  shall  be 
transferred  to  the  permanent  collections  of  the  Library 
of  Congress,  including  the  law  library,  and  what  other 
books  or  articles  shall  be  placed  in  the  reserve  collections 
of  the  Library  of  Congress  for  sale  or  exchange,  or  be 
transferred  to  other  governmental  libraries  in  the  Dis- 
trict of  Columbia  for  use  therein. 

Sec.  60.  That  of  any  articles  undisposed  of  as  above 
provided,  together  with  all  titles  and  correspondence  re- 
lating thereto,  the  Librarian  of  Congress  and  the  register 
of  copyrights  jointly  shall,  at  suitable  intervals,  determine 
what  of  these  received  during  any  period  of  years  it  is 
desirable  or  useful  to  preserve  in  the  permanent  files  of 
the  copyright  office,  and,  after  due  notice  as  hereinafter 
provided,  may  within  their  discretion  cause  the  remain- 
ing articles  and  other  things  to  be  destroyed:  Provided, 
That  there  shall  be  printed  in  the  Catalogue  of  Copy- 
right Entries  from  February  to  November,  inclusive,  a 
statement  of  the  years  of  receipt  of  such  articles  and  a 
notice;  to  permit  any  author,  copyright  proprietor,  or 
other  lawful  claimant  to  claim  and  remove  before  the 
expiration  of  the  month  of  December  of  that  year  any- 


APPENDIX  7(J7 

thing  found  which  relates  to  any  of  his  productions  de- 
])osited  or  registered  for  C()i)yright  witliin  the  jK'riod  of 
years  stated,  not  reserved  or  disposed  of  as  provided  for 
in  this  Act:  And  provided  further,  That  no  manuscript 
of  an  unpu})lished  work  shall  be  destroyed  during  its 
term  of  copyright  without  specific  notice  to  the  copyright 
proprietor  of  record,  permitting  him  to  claim  and  re- 
move it. 

Sec.  61.  That  the  register  of  copyrights  shall  receive, 
and  the  persons  to  whom  the  services  designated  are  ren- 
dered shall  pay,  the  following  fees:  For  the  registration 
of  any  work  subject  to  copyright,  deposited  under  the 
provisions  of  this  Act,  one  dollar,  which  sum  is  to  include 
a  certificate  of  registration  under  seal:  Provided,  That 
in  the  case  of  photographs  the  fee  shall  be  fifty  cents 
where  a  certificate  is  not  demanded.  For  every  addi- 
tional certificate  of  registration  made,  fifty  cents.  For 
recording  and  certifying  any  instrument  of  wTiting  for  the 
assigmiient  of  copyright,  or  any  such  license  specified  in 
section  one,  subsection  (e),  or  for  any  copy  of  such  assign- 
ment or  license,  duly  certified,  if  not  over  three  hundred 
words  in  length,  one  dollar;  if  more  than  three  hundred 
and  less  than  one  thousand  words  in  length,  two  dollars; 
if  more  than  one  thousand  words  in  length,  one  dollar  ad- 
ditional for  each  one  thousand  words  or  fraction  thereof 
over  tlu-ee  hundred  words.  For  recording  the  notice  of 
user  or  acquiescence  specified  in  section  one,  subsection 
(e),  twenty-five  cents  for  each  notice  if  not  over  fifty 
words,  and  an  additional  twenty-five  cents  for  each  addi- 
tional one  hundred  words.  For  comparing  any  copy  of 
an  assigmiient  with  the  record  of  such  document  in  the 


708  APPENDIX 

copyright  office  and  certifying  the  same  under  seal,  one 
dollar.  For  recording  the  extension  or  renewal  of  copy- 
right provided  for  in  sections  twenty-three  and  twenty- 
four  of  this  Act,  fifty  cents.  For  recording  the  transfer 
of  the  proprietorship  of  copyrighted  articles,  ten  cents 
for  each  title  of  a  book  or  other  article,  in  addition  to  the 
fee  prescribed  for  recording  the  instrument  of  assign- 
ment. For  any  requested  search  of  copyright  office  rec- 
ords, indexes,  or  deposits,  fifty  cents  for  each  full  hour 
of  time  consumed  in  making  such  search:  Provided,  That 
only  one  registration  at  one  fee  shall  be  required  in  the 
case  of  several  volumes  of  the  same  book  deposited  at  the 
same  time. 

Sec.  62.  That  in  the  interpretation  and  construction  of 
this  Act  ''the  date  of  publication"  shall  in  the  case  of  a 
work  of  which  copies  are  reproduced  for  sale  or  distribu- 
tion be  held  to  be  the  earliest  date  when  copies  of  the  first 
authorized  edition  were  placed  on  sale,  sold,  or  publicly 
distributed  by  the  proprietor  of  the  copyright  or  under 
his  authority,  and  the  word  "author"  shall  include  an 
employer  in  the  case  of  works  made  for  hire. 

Sec.  G3.  That  all  laws  or  parts  of  laws  in  conflict  with 
the  provisions  of  this  Act  are  hereby  repealed,  but  noth- 
ing in  this  Act  shall  affect  causes  of  action  for  infringe- 
ment of  copyright  heretofore  committed  now  pending  in 
courts  of  the  United  States,  or  which  may  hereafter  be 
instituted;  but  such  causes  shall  ha  prosecuted  to  a  con- 
clusion in  the  manner  heretofore  provided  by  law. 

Sec.  64.  That  this  Act  shall  go  into  effect  on  the  first 
day  of  July,  niiK^tccn  hundred  and  nine. 

Approved,  ^larcli  4,  1909. 


APPENDIX  709 

NOTE    TO    SECTION    18,    PROVISO 

The  Act  of  June  IS,  1874,  provides  that  the  notice  of 
copyright  to  be  inscribed  on  each  copy  of  a  cop>Tighted 
worlv  shall  consist  of  the  following  words: 

"Entered  according  to  Act  of  Congress,  in  the  year 

,  by  A.  B.,  in  the  office  of  the  Librarian  of  Congress, 

at  Washington";  or,  .  .  .  the  word  "CopjTight,"  to- 
gether with  the  year  the  copyright  was  entered,  and  the 
name  of  the  party  by  whom  it  was  taken  out,  thus: 
"Copyright,  18—  by  A.  B." 


PRESIDENTIAL  PROCLAMATIONS 

[See  Sec.  8] 

The  following  proclamations  have  been  issued  by  the 
President,  by  which  copyright  protection  is  granted  in 
the  United  States  to  works  of  authors  who  are  citizens  or 
subjects  of  the  countries  named.  It  is  to  be  noted  that 
this  protection  does  not  include  ''copyright  controlling 
the  parts  of  instruments  serving  to  reproduce  mechanic- 
ally the  musical  work"  provided  in  Sec.  1  (e)  of  the  Act 
of  March  4,  1909,  except  in  the  case  of  the  countries 
named  in  the  second  part  of  this  hst,  viz :  Belgium,  Cuba, 
Germany,  Great  Britain,  Hungary,  Italy,  Luxemburg, 
and  Norway. 

July  1,  1891 — Belgium,  France,  Great  Britain  and  the 
British  possessions,  and  Switzerland.  (Stat.  L.,  vol.  27, 
pp.  981-982.) 

April  15,  1892— Germany.    (Stat.  L.,  vol.  27,  pp.  1021- 
1022.) 
October  31,  1892— Italy.    (Stat.  L.,  vol.  27,  p.  1043.) 
May  8,  1893— Denmark.    (Stat.  L.,  vol.  28,  p.  1219.) 
July  20,  1893— Portugal.    (Stat.  L.,  vol.  28,  p.  1222.) 
July  10,  1895— Spain.    (Stat.  L.,  vol.  29,  p.  871.) 
February  27,  189G— Mexico.    (Stat.  L.,  vol.  29,  p.  877.) 
May  25,  1896    Chile.    (Stat.  L.,  vol.  29,  p.  880.) 
October   19,    1899— Costa  Rica.     (Stat.   L.,   vol.   31, 
pp.  1955-19.')G.) 
710 


APPENDIX  711 

November  20,  1899 — Netherlands  and  possessions. 
(Stat.  L.,  vol.  31,  p.  19G1.) 

November  17,  1903— Cuba.  (Stat.  L.,  vol.  33,  pt.  2. 
p.  2324.) 

January  13,  1904— China.  (Treaty  of  October  8,  1903. 
^Vrticle  XI.)    (Stat.  L.,  vol.  33,  pt.  2,  pp.  2208,  2213-2214.J 

July  1,  1905— Nor\vay.  (Stat.  L.,  vol.  34,  pt.  3,  pp. 
3111-3112.) 

May  17,  1906 — Japan.  (Treaty  of  November  10, 
1905.)    (Stat.  L.,  vol.  34,  pt.  3,  pp.  2890-2891.) 

September  20,  1907 — Austria.  (Stat.  L.,  vol.  35,  pt.  2, 
p.  2155.) 

April  9,  1908 — Convention  between  the  United  States 
and  other  powers  on  literary  and  artistic  copjTights, 
signed  at  the  City  of  Mexico,  January'  27,  1902.  (This 
treaty  is  effective  from  July  1,  190S,  as  between  the 
United  States  and  the  following  countries:  Guatemala, 
Salvador,  Costa  Rica,  Honduras,  and  Nicaragua.)  (Stat. 
L.,  vol.  35,  pt.  2,  pp.  1934-194G.  English,  French,  and 
Spanish  texts.) 

August  11,  1908— Japan.  (Treaty  of  May  19,  1908, 
for  protection  hi  Cliina.)  (Stat.  L.,  vol.  35,  pt.  2,  pp. 
2044-204G.) 

August  11,  1908— Japan.  (Treaty  of  May  19,  1908, 
for  j)rotection  in  Korea.)  (Stat.  L.,  vol.  35,  pt.  2,  pj). 
2041-2043.) 

April  9,  1910— Austria,  Belgium,  Chile,  Costa  Rica, 
Cuba,  Denmark,  France,  Cerman}',  Great  Britain  and 
her  possessions,  Italy,  Mexico,  the  Netherlands  and  i)os- 
sessions,  Norway,  Portugal,  Spain,  and  Switzerland. 
(Stat.  L.,  vol.  30,  pt.  2,  pp.  2685-2686.) 


712  APPENDIX 

June  29,  1910— Luxemburg.  (Stat.  L.,  vol.  36,  pt.  2, 
p.  2716.) 

May  26,  1911— Sweden.  (Effective  June  1,  1911.) 
(Stat.  L.,  vol.  37,  pt.  2,  pp.  1682-1683.) 

October  4,  1912— Tunis.  (Stat.  L.,  vol.  37,  pt.  2,  p. 
1765.) 

October  15,  1912 — Hungary.  [Copyright  convention 
between  the  United  States  and  Hungary,  effective  Oc- 
tober 16,  1912,  including  protection  under  Sec.  1  (e).] 
(Stat.  L.,  vol.  37,  pt.  2,  pp.  1631-1633.) 

July  13,  1914 — Copyright  convention  between  the 
United  States  and  other  American  Republics,  signed  at 
Buenos  Aires,  August  11,  1910.  (Effective  from  July  13, 
1914,  as  between  the  United  States  and  the  following 
countries:  Dominican  Republic,  Guatemala,  Honduras, 
Panama,  Nicaragua,  and  Ecuador.  The  Governments 
of  Bolivia,  Brazil,  Costa  Rica,  and  Salvador  have  an- 
nounced through  diplomatic  channels  the  adhesion  of 
those  countries  to  this  convention.)  (Stat.  L.,  vol.  38, 
pt.  2,  pp.  1785-1798.  Spanish,  English,  Portuguese, 
and  French  texts.) 

PRESIDENTIAL    PROCLAMATIONS    UNDER    SECTION     1     (e) 

December  8,  1910 — Germany.  (Stat.  L.,  vol.  36,  pt.  2, 
pp.  2761  2702.) 

Jiine  14,  1911 — Belgium,  Luxemburg,  and  Norway. 
(Stat.  L.,  vol.  37,  pt.  2,  pp.  1687-1690.) 

November  27,  1911— Cuba.  (Stat.  L.,  vol.  37,  pt.  2, 
pp.  1721   1722.) 

October  15,  1912 — Hungary.    (See  above.) 


APPENDIX  7i:i 

January  1,  1915 — Great  Britain.  (British  order  in 
council  issued  February  3,  1915,  effective  January  1, 
1915.)    (Stat.  L.,  vol.  38,  pt.  2,  pp.  2044-2045.) 

May  1,  1915— Italy. 


RULES  ADOPTED  BY  THE  SUPREME  COURT  OF 
THE  UNITED  STATES  FOR  PRACTICE  AND 
PROCEDURE  UNDER  SECTION  25  OF  AN 
ACT  TO  AMEND  AND  CONSOLIDATE  THE 
ACTS  RESPECTING  COPYRIGHT,  APPROVED 
MARCH  4,  1909.  TO  GO  INTO  EFFECT  JULY  1, 
1909 


The  existing  rules  of  equity  practice,  so  far  as  they  may 
be  applicable,  shall  be  enforced  in  proceedings  instituted 
under  section  twenty-five  (25)  of  the  act  of  March  fourth, 
nineteen  hundred  and  nine,  entitled  "An  act  to  ^mend 
and  consolidate  the  acts  respecting  copyright." 


A  copy  of  the  alleged  infringement  of  copyright,  if 
actually  made,  and  a  copy  of  the  work  alleged  to  be  in- 
fringed, should  accompany  the  petition,  or  its  absence  be 
explained;  except  in  cases  of  alleged  infringement  by  the 
public  performance  of  dramatic  and  dranuitico-nmsical 
compositions,  the  delivery  of  lectures,  sermons,  addresses, 
and  so  forth,  the  infringement  of  copyright  upon  sculp- 
tures and  other  similar  works  and  in  any  case  where  it  is 
not  feasible. 

3 

Upon  the  institution  of  any  action,  suit,  or  proceeding, 
or  at  any  tunc  thereafter,  and  before;  tlic  entry  of  final 
714 


APPENDIX  715 

judgmpnt  or  decree  therein,  the  plaintiff  or  complainant, 
or  his  authorized  agent  or  attorney,  may  file  with  the  clerk 
of  any  court  given  jurisdiction  under  section  34  of  the 
act  of  March  4,  1909,  an  affidavit  stating,  upon  the  best 
of  his  knowledge,  information,  and  belief,  the  number  and 
location,  as  near  as  may  be,  of  the  alleged  infringing 
copies,  records,  plates,  molds,  matrices,  etc.,  or  other 
means  for  making  the  copies  alleged  to  infringe  the  copy- 
right, and  the  value  of  the  same,  and  with  such  affidavit 
shall  file  with  the  clerk  a  l)ond  executed  by  at  least  two 
sureties  and  approved  by  the  court  or  a  conuuissioner 
thereof. 


Such  bond  shall  bind  the  sureties  in  a  specified  sum,  to 
be  fixed  by  the  court,  but  not  less  than  twice  the  reason- 
able value  of  such  infringing  copies,  plates,  records, 
molds,  matrices,  or  other  means  for  making  such  in- 
fringing copies,  and  be  conditioned  for  the  prompt  pros- 
ecution of  the  action,  suit  or  proceeding;  for  the  return  of 
said  articles  to  the  defendant,  if  they  or  any  of  them  are 
adjudged  not  to  be  infringements,  or  if  the  action  abates, 
or  is  discontinued  before  they  are  returned  to  the  de- 
fendant; and  for  the  pa\inent  to  the  defendant  of  any 
daniag(^s  which  tlie  court  may  award  to  him  against  the 
plaint ilT  or  complainant,  l^pon  the  filing  of  said  affidavit 
and  bond,  and  the  approval  of  said  bond,  the  clerk  shall 
issue  a  writ  directed  to  the  marshal  of  the  district  where 
the  said  infringing  coi)ies,  jilates,  records,  mollis,  mat- 
rices, etc.,  or  other  means  of  making  such  infringing 
copies  shall  be  stated  in  said  affidavit  to  be  iocatcHl,  and 


716  APPENDIX 

generally  to  any  marshal  of  the  United  States,  directing 
the  said  marshal  to  forthwith  seize  and  hold  the  same 
subject  to  the  order  of  the  court  issuing  said  writ,  or  of  the 
court  of  the  district  in  which  the  seizure  shall  be  ijiade. 


The  marshal  shall  thereupon  seize  said  articles  or  any 
smaller  or  larger  part  thereof  he  may  then  or  thereafter 
find,  using  such  force  as  may  be  reasonably  necessary  in 
the  premises,  and  serve  on  the  defendant  a  copy  of  the 
affidavit,  writ,  and  bond  by  dehvering  the  same  to  him 
personally,  if  he  can  be  found  within  the  district  or  if  he 
can  not  be  found,  to  his  agent,  if  any,  or  to  the  person 
from  whose  possession  the  articles  are  taken,  or  if  the 
owner,  agent,  or  such  person  can  not  be  found  within  the 
district  by  leaving  said  copy  at  the  usual  place  of  abode 
of  such  owner  or  agent,  with  a  person  of  suitable  age  and 
discretion,  or  at  the  place  where  said  articles  are  found, 
and  shall  make  immediate  return  of  such  seizure,  or  at- 
tempted seizure,  to  the  court.  He  shall  also  attach  to 
said  articles  a  tag  or  label  stating  the  fact  of  such  seizure 
and  warning  all  persons  from  in  any  manner  interfering 
therewith. 

6 

A  marshal  who  has  seized  alleged  infringing  articles, 
shall  retain  thorn  in  his  possession,  keeping  them  in  a 
secure  place,  subject  to  the  order  of  the  court. 

7 

Within  three  days  after  the  articles  are  seized,  and  a 
copy  of  the  affidavit,  writ  and  bond  are  served  as  herein- 


APPENDIX  717 

before  provided,  the  defendant  shall  serve  upon  the  clerk 
a  notice  that  he  excepts  to  the  amount  of  the  penalty  of 
the  bond,  or  to  the  sureties  of  the  plaintiff  or  complainant, 
or  both,  otherwise  he  shall  be  deemed  to  have  waivod  all 
objection  to  the  amount  of  the  penalty  of  the  bond  and 
the  sufficiency  of  the  sureties  thereon.  If  the  court  sus- 
tain the  exceptions  it  may  order  a  new  bond  to  be  exe- 
cuted by  the  plaintiff  or  complainant,  or  in  default  thereof 
within  a  time  to  be  named  })y  the  court,  the  property  to 
be  returned  to  the  defendant. 

8 

Within  ten  days  after  service  of  such  notice,  the  attor- 
ney of  the  plaintiff  or  complainant  shall  serve  upon  the 
defendant  or  his  attorney  a  notice  of  the  justification  of 
the  sureties,  and  said  sureties  shall  justify  before  the 
court  or  a  judge  thereof  at  the  time  therein  stated. 

9 

The  defendant,  if  he  does  not  except  to  the  amount  of 
the  penalty  of  the  bond  or  the  sufficiency  of  the  sureties  of 
the  ])laintilT  or  c()mi)lainant,  may  make  apj)lication  to  the 
court  for  the  return  to  him  of  the  articles  seized,  upon 
filing  an  affidavit  stating  all  material  facts  and  circum- 
stances tending  to  show  that  the  articles  seized  are  not 
infringing  coj)ies,  records,  plates,  molds,  matrices,  or 
means  for  making  the  copies  alleged  to  infringe  the  copy- 
right. 

10 

Thereupon  the  court  in  its  discretion,  and  after  such 
hearing  as  it  may  direct,  may  order  such  return  upon  the 


718  APPENDIX 

filing  by  the  defendant  of  a  bond  executed  by  at  least  two 
sureties,  binding  them  in  a  specified  sum  to  be  fixed  in  the 
discretion  of  the  court,  and  conditioned  for  the  delivery  of 
said  specified  articles  to  abide  the  order  of  the  court.  The 
plaintiff  or  complainant  may  require  such  sureties  to 
justify  within  ten  days  of  the  filing  of  such  bond. 

11 

Upon  the  granting  of  such  application  and  the  justifica- 
tion of  the  sureties  on  the  bond,  the  marshal  sha.ll  imme- 
diately deUver  the  articles  seized  to  the  defendant. 

12 

Any  service  required  to  be  performed  by  any  marshal 
may  be  performed  by  any  deputy  of  such  marshal. 

13 

For  services  in  cases  arising  under  this  section,  the 
marshal  shall  be  entitled  to  the  same  fees  as  are  allowed  for 
similar  services  in  other  cases. 


COPYRIGHT 

By  the  President  of  the  United  States  of  America 

a  proclamation 

Whereas  it  is  provided  by  the  act  of  Con^^ess  of 
March  4,  1909,  entitled  "An  act  to  amend  and  con- 
soHdate  the  acts  respecting  copyright,"  that  the  benefits 
of  said  act,  excepting  the  benefits  under  section  1  (e) 
thereof,  as  to  whicli  special  conditions  are  imposed,  shall 
extend  to  the  work  of  an  author  or  ])roprietor  who  is  a 
citizen  or  subject  of  a  foreign  State  or  nation,  only  upon 
certain  conditions  set  forth  in  section  8  of  said  act,  to 
wit: 

(a)  WTien  an  alien  author  or  proprietor  shall  be  dom- 
iciled within  the  United  States  at  the  time  of  the  first 
publication  of  his  work;  or 

(b)  Wlien  the  foreign  State  or  nation  of  which  such 
author  or  proprietor  is  a  citizen  or  subject  grants,  either 
by  treaty,  convention,  agreement,  or  law,  to  citizens  of 
the  United  States  the  benefit  of  copyright  on  substantially 
the  same  basis  as  to  its  own  citizens,  or  copyright  pro- 
tection substantially  equal  to  the  protection  secured 
to  such  foreign  author  under  this  act  or  by  treaty;  or  when 
such  foreign  State  or  nation  is  a  party  to  an  international 
agreement  which  provides  for  reciprocity  in  tlio  grant- 
ing   of   copyright,    by   the    terms    of   which    agreement 

719 


720  APPENDIX 

the  United  States  may,  at  its  pleasure,  become  a  party 
thereto : 

And  whereas  it  is  also  provided  by  said  section  that 
' '  The  existence  of  the  reciprocal  conditions  aforesaid  shall 
be  determined  by  the  President  of  the  United  States,  by 
proclamation  made  from  time  to  time  as  the  purposes  of 
this  act  may  require": 

And  whereas  satisfactory  evidence  has  been  received 
that  in  Austria,  Belgium,  Chile,  Costa  Rica,  Cuba,  Den- 
mark, France,  Germany,  Great  Britain  and  her  posses- 
sions, Italy,  Mexico,  the  Netherlands  and  possessions, 
Norv/ay,  Portugal,  Spain,  and  Switzerland  the  law  per- 
mits and  since  July  1,  1909,  has  permitted  to  citizens  of  the 
United  States  the  benefit  of  copyright  on  substantially  the 
same  basis  as  to  citizens  of  those  countries: 

Now,  therefore,  I,  William  Howard  Taft,  President 
of  the  United  States  of  America,  do  declare  and  proclaim 
that  one  of  the  alternative  conditions  specified  in  sec- 
tion 8,  of  the  act  of  March  4,  1909,  is  now  fulfilled,  and 
since  July  1,  1909,  has  continuously  been  fulfilled,  in 
respect  to  the  citizens  or  subjects  of  Austria,  Belgium, 
Chile,  Costa  Rica,  Cuba,  Denmark,  France,  Germany, 
Great  Britain  and  her  possessions,  Italy,  Mexico,  the 
Netherlands  and  possessions,  Nonvay,  Portugal,  Spain, 
and  Switzerland,  and  that  the  citizens  or  subjects  of  the 
aforementioned  countries  arc  and  since  July  1,  1909,  have 
been  entitled  to  all  of  the  benefits  of  the  said  act  other 
than  the  benefits  under  section  1  (c)  thereof,  as  to  which 
the  inquiry  is  still  ponding. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and 
caused  the  seal  of  the  United  States  to  be  affixed. 


APPENDIX  721 

Done  at  the  city  of  Washington  this  ninth 

day  of  April,   in   the  year  of  our   Lord   one 

[seal]     thousand  nine  hundred   and   ten,   and  of  the 

Independence  of  tlie  United  States  of  America 

the  one  hundred  and  thirty-fourth. 

Wm.  n.  Taft. 
By  the  President: 
P.  C.  Knox, 
Secretary  of  State. 

In  "The  Statutes  at  Large  of  the  United  States  of  America,  from 
March,  1909,  to  March,  1911."  Vol.  36,  part  2.  8vo.  Washington, 
1011,  pp.  2685-2686. 


COPYRIGHT  CONVENTION 

United  States  and  Hungary 

in  force  october  16,  1912 

The  President  of  the  United  States  of  America  and  His 
Majesty  the  Emperor  of  Austria,  King  of  Bohemia,  etc., 
and  ApostoHc  King  of  Hungary,  desiring  to  provide,  be- 
tween the  United  States  of  America  and  Hungary,  for  a 
reciprocal  legal  protection  in  regard  to  copyright  of  the 
citizens  and  subjects  of  the  two  countries,  have,  to  this 
end,  decided  to  conclude  a  convention,  and  have  ap- 
pointed as  their  plenipotentiaries: 

The  President  of  the  United  States  of  America — 

Richard  C.  Kerens,  Ambassador  Extraordinary  and 
Plenipotentiary  of  the  United  States  of  America  to  His 
Imperial  and  Royal  Apostolic  Majesty;  and 

His  Majesty  the  Emperor  of  Austria,  King  of  Bohemia, 
etc.,  and  Apostolic  King  of  Hungary — 

Count  Paul  Esterhazy,  Baron  of  Galantha,  Viscount  of 
Frakno,  Privy  Councillor  and  Chamberlain,  Chief  of 
Section  in  the  Ministry  of  the  Imperial  and  Royal  House 
and  of  Foreign  Affairs,  and 

Dr.  Gustavus  dc  Tory,  Secretary  of  State  in  the  Royal 
Hungarian  Ministry  of  Justice; 

Who,  having  communicated  to  each  other  their  full 
powers,  found  to  be  in  good  and  due  form,  have  agreed  as 
follows : 

722 


appendix  723 

Article  1 

Authors  who  are  citizens  or  subjects  of  one  of  the  two 
countries  or  tiieir  assigns  shall  enjoy  in  the  other  country, 
for  their  literary,  artistic,  dramatic,  musical,  and  photo- 
^;rai)liic  works  (whether  unpublished  or  published  in  one 
of  the  two  countries)  the  same  rij^hts  which  the  respective 
laws  do  now  or  may  hereafter  grant  to  natives. 

The  above  provision  includes  the  copyright  control  of 
mechanical  musical  reproductions. 

Article  2 

The  enjoyment  and  the  exercise  of  the  rights  secured  by 
the  present  Convention  are  subject  to  the  performance  of 
the  conditions  and  formalities  prescribed  by  the  laws  and 
regulations  of  the  country  where  protection  is  claimed 
under  the  present  Convention;  such  enjoyment  and  such 
exercise  are  independent  of  the  existence  of  protection  in 
the  country  of  origin  of  the  work. 

Article  3 

The  term  of  copyright  protection  granted  by  the  pres- 
ent Convention  shall  i^e  regulated  by  the  law  of  the  coun- 
try where  protection  is  claimed. 

Article  4 

The  present  Convention  .shall  be  ratified  and  the  rati- 
fications shall  be  exchanged  at  Washington  as  soon  as 
possible. 

.Vrticle  5 

The  present  Convention  shall  be  put  in  force  one  month 
after  the  exchange  of  ratifications,  and  shall  remain  in 


724  APPENDIX 

force  until  the  termination  of  a  year  from  the  day  on 
which  it  may  have  been  denounced. 

In  faith  whereof  the  Plenipotentiaries  have  signed  the 
present  Convention  in  two  copies,  each  in  Enghsh  and 
Hungarian  languages,  and  have  afhxed  thereto  their  seals. 
Done  at  Budapest,  the  30th  day  of  January,  1912. 

(seal)  Richard  C.  Kerens. 
(seal)  Esterhazy  Pal. 
(seal)  Tory  Gustav. 

Note. — Ratification  was  advised  by  the  Senate,  July  23,  1912; 
ratifications  were  exchanged,  September  16,  1912;  proclaimed  by  the 
President,  October  15,  1912.  The  Convention  went  into  force  Octo- 
ber 16,  1912. 

In  "The  Statutes  at  Large  of  the  United  States  of  America,  from 
March,  1911,  to  March,  1913."  Vol.  37,  part  2.  8vo.  Washington, 
1913,  pp.  1631-1633. 


COPYRIGHT  CONVENTION  BET\\T^EN  THE 
UNITED  STATES  AND  OTHER  AxMERICAN  RE- 
PUBLICS 

Signed  at  Buetwa  Aires,  Aiigust  11,  1910;  ratification  advised  by  the 
Senate,  February  1'),  1011:  ratified  by  the  President,  March  12,  Ifill: 
ratification  of  the  United  States  deposited  with  the  Government  of  the 
Argentine  Republic,  May  1, 1911;  proclaimed  Jxdy  IS,  1914 

By  the  President  of  the  United  States  of  America 

a  proclamation 

Wlioroas,  a  Convention  on  Litcrar>'  and  Artistic  Copy- 
right between  the  United  States  of  America  and  the  Ar- 
gentine Republic,  Brazil,  Cliile,  Colombia,  Costa  Rica, 
Cuba,  Dominican  Republic,  Ecuador,  Guatemala,  Haiti, 
Honduras,  Mexico,  Nicaragua,  Panama,  Paraguay,  Peru, 
Salvador,  Uruguay,  and  Venezuela  was  concluded  and 
signed  by  their  respective  Plenipotentiaries  at  Buenos 
Aires  on  the  (>leventh  day  of  August,  one  thousand  nine 
hundred  and  ten,  tlie  original  of  which  Convention,  being 
in  the  Spanish,  English,  Portuguese  and  French  lan- 
guages, is  word  for  word  as  follows: 

Fourth  International  Amkrican  Convention 

literary  and  artistic  copvricht 

Tlu'ir  Excellencies  the  Presidents  of  the  United  States 
of  America,  the  Argentine  RepubUc,  Brazil,  Chili,  Colom- 

725 


726  APPENDIX 

bia,  Costa  Rica,  Cuba,  Dominican  Republic,  Ecuador, 
Guatemala,  Haiti,  Honduras,  Mexico,  Nicaragua,  Panama, 
Paraguay,  Peru,  Salvador,  Uruguay  and  Venezuela; 

Being  desirous  that  their  respective  countries  may  be 
represented  at  the  Fourth  International  American  Con- 
ference, have  sent  thereto  the  following  Delegates  duly 
authorized  to  approve  the  recommendations,  resolutions, 
conventions  and  treaties  which  they  might  deem  advan- 
tageous to  the  interests  of  America: 

[Here  follow  the  names  of  the  respective  delegates, 
Qmitted.] 

Who,  after  having  presented  then*  credentials  and  the 
same  having  been  found  in  due  and  proper  form,  have 
agreed  upon  the  following  Convention  on  Literary  and 
Artistic  Copyright. 

Article  1.  The  signatory  States  acknowledge  and  pro- 
tect the  rights  of  Literary  and  Artistic  Property  in  con- 
formity with  the  stipulations  of  the  present  Convention. 

Article  2.  In  the  expression  "Literary  and  iVrtistic 
works"  are  included  books,  writings,  pamphlets  of  all 
kinds,  whatever  may  be  the  subject  of  which  they  treat, 
and  whatever  the  number  of  theu-  pages;  dramatic  or 
dramatico-musical  works;  choreographic  and  musical 
compositions,  with  or  without  words;  drawings,  paint- 
ings, sculpture,  engravings;  photographic  works;  astro- 
nomical or  geographical  globes;  plans,  sketches  or  plastic 
works  relating  to  geography,  geology  or  topography, 
architecture  or  any  other  science;  and,  finally,  all  pro- 
ductions that  can  be  published  by  any  means  of  impres- 
sion or  reproduction. 

Article  3.  The  acknowledgment  of  a  copyright  ob- 


APPENDIX  727 

tained  in  one  State,  in  conformity  with  its  laws,  shall 
produce  its  effects  of  full  riglit,  in  all  the  other  States, 
without  the  necessity  of  complying  with  any  other  for- 
mahtj;,  provided  always  there  shall  appear  in  the  work 
a  statement  that  indicates  the  reservation  of  the  proj)- 
erty  right. 

Article  4.  The  copyright  of  a  literary  or  artistic  work, 
includes  for  its  author  or  assigns  the  exclusive  power  of 
disposing  of  the  same,  of  publishing,  assigning,  translat- 
ing, or  authorizing  its  translation  and  reproducing  it  in 
any  form  whether  wholly  or  in  part. 

Article  5.  The  author  of  a  protected  work,  except  in 
case  of  proof  to  the  contrary,  shall  be  considered  the 
person  whose  name  or  well  known  nom  de  plume  is  in- 
dicated therein;  consequently  suit  brought  by  such  author 
or  his  representative  against  counterfeiters  or  violators, 
shall  be  admitted  by  the  Courts  of  the  Signatory  States. 

Article  G.  The  authors  or  their  assigns,  citizens  or 
domiciled  foreigners,  shall  enjoy  in  the  signatory-  coun- 
tries the  rights  that  the  respective  laws  accord,  without 
those  rights  being  allowed  to  exceed  the  tenu  of  protec- 
tion granted  in  the  country  of  origin. 

For  works  comi)rising  several  volumes  that  are  not 
published  simultaneously,  as  well  as  for  bulletins,  or 
parts,  or  periodical  publications,  the  term  of  the  coi\v- 
right  will  commence  to  run,  witli  respect  to  each  volume, 
bulletin,  part,  or  periodical  publication,  from  the  respec- 
tive date  of  its  pubUcation. 

Article  7.  The  country  of  origin  of  a  work  will  be 
deemed  that  of  its  first  puI)M('ation  in  America,  and  if  it 
shall   have  appeared   simultaneously   in   several   of   the 


728  APPENDIX 

signatory  countries,  that  which  fixes  the  shortest  period 
of  protection. 

Article  8.  A  work  which  was  not  originally  copyrighted 
shall  not  be  entitled  to  copyright  in  subsequent  editions. 

Article  9.  Authorized  translations  shall  be  protected 
in  the  same  manner  as  original  works. 

Translators  of  works  concerning  which  no  right  of  guar- 
anteed property  exists,  or  the  guaranteed  copyright  of 
which  may  have  been  extinguished,  may  obtain  for  their 
translations  the  rights  of  property  set  forth  in  Article 
3rd  but  they  shall  not  prevent  the  publication  of  other 
translations  of  the  same  work. 

Article  10.  Addresses  or  discourses  delivered  or  read 
before  deliberative  assemblies,  Courts  of  Justice,  or  at 
public  meeting,  may  be  printed  in  the  daily  press  without 
the  necessity  of  any  authorization,  with  due  regard,  how- 
ever, to  the  provisions  of  the  domestic  legislation  of  each 
nation. 

Article  11.  Literary,  scientific  or  artistic  writings, 
whatever  may  be  their  subjects,  published  in  newspapers 
or  magazines,  in  any  one  of  the  countries  of  the  Union, 
shall  not  be  reproduced  in  the  other  countries  without 
the  consent  of  the  authors.  With  the  exception  of  the 
works  mentioned,  any  article  in  a  newspaper  may  be 
reprinted  by  others,  if  it  has  not  been  expressly  pro- 
hibited, but  in  every  case,  the  source  from  which  it  is 
taken  must  be  cited. 

News  and  miscellaneous  items  published  merely  for 
general  information,  do  not  enjoy  protection  under  this 
convention. 

Article  12.  The  reproduction  of  extracts  from  literary 


APPENDIX  729 

or  artistic  publications  for  tlic  purpose  of  instruction  (jr 
chrestomathy,  does  not  confer  any  right  of  property, 
and  may,  therefore,  be  freely  made  in  all  the  signatory 
countries. 

Article  13.  The  indirect  appropriation  of  unauthorized 
parts  of  a  literary  or  artistic  work,  having  no  original 
character,  shall  be  deemed  an  illicit  reproduction,  in  so 
far  as  effects  civil  liability. 

The  reproduction  in  any  form  of  an  entire  work,  or  of 
the  greater  part  thereof,  accompanied  by  notes  or  com- 
mentaries under  the  pretext  of  literary  criticism  or  am- 
plification, or  supplement  to  the  original  work,  shall  also 
be  considered  illicit. 

Article  14.  Every  publication  infringing  a  cop}Tight 
may  be  confiscated  in  the  signatory  countries  in  which 
the  original  work  had  the  right  to  be  legally  protected, 
without  prejudice  to  the  indemnities  or  penalties  which 
the  counterfeiters  may  have  incurred  according  to  the 
laws  of  the  country  in  which  the  fraud  may  have  been 
committed. 

Article  15.  Each  of  the  Governments  of  the  signatory 
countries,  shall  retain  the  right  to  permit,  inspect,  or  pro- 
hibit the  circulation,  representation  or  exhibition  of  works 
or  productions,  concerning  which  the  proper  authority 
may  have  to  exercise  that  right. 

Article  10.  The  present  Convention  shall  become  op- 
erative between  the  Signatory  States  which  ratify  it, 
three  months  after  they  shall  have  communicated  their 
ratification  to  the  Argentine  (lovernment,  and  it  shall 
remain  in  force  among  thcMn  until  a  year  after  the  date 
when  it  may  be  denounced.    This  denunciation  shall  be 


730  APPENDIX 

addressed  to  the  Argentine  Government  and  shall  be  with- 
out force  except  with  respect  to  the  country  making  it. 

In  witness  whereof,  the  Plenipotentiaries  have  signed 
the  present  treaty  and  affixed  thereto  the  Seal  of  the 
Fourth  International  American  Conference. 

Made  and  signed  in  the  City  of  Buenos  Aires  on  the 
eleventh  day  of  August  in  the  year  one  thousand  nine 
hundred  and  ten,  in  Spanish,  English,  Portuguese  and 
French,  and  deposited  in  the  Ministry  of  Foreign  Affairs 
of  the  Argentine  Republic,  in  order  that  certified  copies 
be  made  for  transmission  to  each  one  of  the  signatory 
nations  through  the  appropriate  diplomatic  channels. 

[Here  follow  the  signatures  (omitted)  of  the  delegates 
of  the  United  States  of  America  and  the  other  nineteen 
contracting  states:  Argentine  Republic,  Brazil,  Chili, 
Colombia,  Costa  Rica,  Cuba,  Dominican  Republic, 
Ecuador,  Guatemala,  Haiti,  Honduras,  Mexico,  Nicara- 
gua, Panama,  Paraguay,  Peru,  Salvador,  Uruguay, 
Venezuela.] 

And  whereas,  the  said  Convention  has  been  ratified  by 
the  Government  of  the  United  States,  by  and  with  the 
advice  and  consent  of  the  Senate  thereof,  and  by  the 
Governments  of  the  Dominican  Republic,  Guatemala, 
Honduras,  Panama,  Nicaragua,  and  Ecuador,^  and  the 
ratifications  of  the  said  Governments  were,  by  the  pro- 
visions of  Article  IG  of  the  said  Convention,  deposited 
by  their  respective  Plenipotentiaries  with  the  Government 
of  the  Argentine  Republic; 

*  The  Governments  of  Bolivia,  Brazil,  Costa  Rica,  and  Salvador  have 
announced  tliroup;h  fliplomatic  channels  the  adhesion  of  those  coun- 
tries to  this  copyright  convention. 


APPENDIX  731 

Now,  therefore,  be  it  known  that  I,  Woodrow  Wilson, 
President  of  the  United  States  of  America,  have  caused 
the  said  Convention  to  be  made  public,  to  the  end  that 
the  same  and  every  article  and  clause  thereof  may  be 
observed  and  fulfilled  with  good  faith  by  the  United  States 
and  the  citizens  thereof. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and 
caused  the  seal  of  the  United  States  to  be  affixed. 

Done  at  the  City  of  Washington  this  thirteenth  day  of 
July  in  the  year  of  our  Lord  one  thousand  nine 
[seal]     hundred  and  fourteen,  and  of  the  Independence 
of  the  United  States  of  America  the  one  hun- 
dred and  thirty-ninth. 

Woodrow  Wilson.  . 
By  the  President: 
W.  J.  Bryan, 
Secretary  of  State. 

In  "The  Statutes  at  Large  of  the  United  States  of  America,  from 
March,  1913,  to  March,  101.')."  Vol.  3S,  part  2.  8vo.  Washington, 
1915,  pages  1785-1798.  (Spanish,  Enghsh,  Portuguese,  and  French 
texts.) 


GREAT  BRITAIN 

Order  in  Council  under  the  Copyright  Act,  1911  (1  «fe  2  Geo.  5,  c.  46), 
regulating  Copyright  Relations  with  the  United  States  of  America. 

At  the  Court  at  Buckingham  Palace,  the  3d  day  of  Feb- 
ruary, 1915. 

Present,  The  King's  Most  Excellent  Majesty,  Lord 
President,  Viscount  Knollys,  Lord  Chamberlain, 
Mr.  Secretary  Harcourt,  Mr.  Arthur  Henderson, 
Sir  William  Macgregor,  Lord  Justice  Bankes. 

Whereas  by  a  Proclamation  of  the  President  of  the 
United  States  of  America,  dated  the  9th  April,  1910,  the 
benefits  of  the  United  States  Act  of  1909,  entitled  "An 
Act  to  Amend  and  Consolidate  the  Acts  respecting  Copy- 
right," were  extended  to  the  subjects  of  Great  Britain 
and  her  possessions,  but  no  provision  was  made  therein 
for  the  protection  of  the  musical  works  of  British 
subjects  against  reproduction  by  means  of  mechanical 
contrivances : 

And  whereas  His  Majesty  is  advised  that  the  Govern- 
ment of  the  United  States  of  America  has  undertaken, 
ui)on  the  issue  of  this  Order,  to  grant  such  protection 
to  the  nmsical  works  of  British  subjects: 

And  whereas  by  reason  of  these  premises  His  Majesty 
is  satisfied  that  the  Government  of  the  United  States  of 
America  has  made,  or  has  undertaken  to  make,  such  pro- 
732 


APPENDIX  733 

vision  as  it  is  expedient  to  rctjuire  for  tiie  protection  of 
works  entitled  to  copyright  under  the  provisions  of  Part 
I  of  the  Copyri^lit  Act,  1911: 

And  whereas  by  the  Copyright  Act,  I'JII,  autliority  is 
conferred  upon  His  Majesty  to  extend,  by  Order  in  Coun- 
cil, the  protection  of  the  said  Act  to  certain  classes  of 
foreign  works  within  any  part  of  His  Majesty's  Dominions, 
other  than  self-governing  dominions,  to  which  the  said 
Act  extends : 

And  whereas  it  is  desirable  to  provide  protection  within 
the  said  dominions  for  the  unpublished  works  of  citizens 
of  the  United  States  of  America: 

Now,  therefore,  His  Majesty,  by  and  with  the  advice 
of  His  Privy  Council,  and  by  virtue  of  the  authority  con- 
ferred upon  him  by  the  Copyright  Act,  1911,  is  pleased 
to  order,  and  it  is  hereby  ordered,  as  follows: — 

1.  The  Copyright  Act,  1911,  including  the  provisions 
as  to  existing  works,  shall,  subject  to  the  provisions  of  the 
said  Act  and  of  this  Order,  apply — 

(a)  to  literary,  dramatic,  musical  and  artistic  works 
the  authors  whereof  were  at  the  time  of  the  making 
of  the  works  Citizens  of  the  United  States  of  America, 
in  like  manner  as  if  the  authors  had  been  British  Sub- 
jects: 

(b)  in  respect  of  residence  in  the  United  States  of 
America,  in  like  manner  as  if  such  R\sidence  had  been 
residence  in  the  jiarts  of  His  Majesty's  dominions  to 
which  the  said  Act  extends. 

Provided  that — 

(i)  The  tenn  of  copyright  within  the  i>arts  of  His 
Majesty's  dominions  to  which  this  Order  applies  shall  not 


734  APPENDIX 

exceed  that  conferred  by  the  law  of  the  United  States  of 
America : 

(ii)  the  enjoyment  of  the  rights  conferred  by  this  Order 
shall  be  subject  to  the  accompUshment  of  the  conditions 
and  formalities  prescribed  by  the  law  of  the  United  States 
of  America : 

(iii)  in  the  application  to  existing  works  of  the  provi- 
sions of  Section  24  of  the  Copyright  Act,  1911,  the  com- 
mencement of  this  Order  shall  be  substituted  for  the  26th 
July,  1910,  in  subsection  1  (6). 

2.  This  Order  shall  apply  to  all  His  Majesty's  Domin- 
ions, Colonies  and  Possessions,  with  the  exception  of  those 
hereinafter  named,  that  is  to  say: — 

The  Dominion  of  Canada. 
The  Commonwealth  of  Australia. 
The  Dominion  of  New  Zealand. 
The  Union  of  South  Africa. 
Newfoundland. 

3.  This  Order  shall  come  into  operation  on  the  1st  day 
of  January,  1915,  which  day  is  in  this  Order  referred  to 
as  the  commencement  of  this  Order. 

And  the  Lords  Commissioners  of  His  Majesty's  Treas- 
ury are  to  give  the  necessary  Orders  accordingly. 

Almeric  FitzRoy. 


COPYRIGHT— GREAT  BRITAIN 

By  the  President  of  the  United  States  of  America 

a  proclamation 

Whereas  it  is  provided  by  the  Act  of  Congress  of 
March  4,  1909,  entitled  "An  Act  to  Amend  and  Con- 
soHdate  the  Acts  Respecting  CopjTight,"  that  the  provi- 
sions of  said  Act,  "so  far  as  they  secure  copyright  con- 
troIHng  the  parts  of  instruments  ser\ing  to  reproduce 
mechanically  the  musical  work,  shall  include  only  com- 
positions published  and  copyi'ighted  after  this  Act  goes 
into  effect,  and  shall  not  include  the  works  of  a  foreign 
author  or  C()nij)()scr  unless  the  foreign  state  or  nation  of 
which  such  author  or  composer  is  a  citizen  or  subject 
grants,  either  by  treaty,  convention,  agreement,  or  law, 
to  citizens  of  the  United  States  similar  rights": 

And  whereas  it  is  further  provided  that  the  copjTight 
secured  by  the  Act  shall  extend  to  the  work  of  an  author 
or  proprietor  who  is  a  citizen  or  subject  of  a  foreign  state 
or  nation,  only  upon  certain  conditions  set  forth  in  sec- 
tion 8  of  said  Act,  to  wit: 

(a)  When  an  alien  author  or  proprietor  shall  be  domi- 
ciled within  the  United  States  at  the  time  of  the  first 
])ublicati()n  of  his  work;  or 

(6)  When  the  foreign  state  or  nation  of  which  such 
author  or  proprietor  is  a  citizen  or  subject  grants,  either 

735 


736  APPENDIX 

by  treaty,  convention,  agreement,  or  law,  to  citizens  of 
the  United  States  the  benefit  of  copyright  on  substantially 
the  same  basis  as  to  its  own  citizens,  or  copyright  pro- 
tection substantially  equal  to  the  protection  secured  to 
such  foreign  author  under  this  Act  or  by  treaty;  or  when 
such  foreign  state  or  nation  is  a  party  to  an  international 
agreement  which  provides  for  reciprocity  in  the  granting 
of  copyright,  by  the  terms  of  which  agreement  the  United 
States  may,  at  its  pleasure,  become  a  party  thereto : 

And  whereas  it  is  also  provided  by  said  section  that 
''The  existence  of  the  reciprocal  conditions  aforesaid  shall 
be  determined  by  the  President  of  the  United  States,  by 
proclamation  made  from  time  to  time  as  the  purposes  of 
this  Act  may  require": 

And  whereas  satisfactory  official  assurance  has  been 
given  that,  by  virtue  of  the  authority  conferred  by  the 
British  Copyright  Act,  1911,  a  British  Order  in  Council 
has  been  issued  of  even  date  with  this  Proclamation 
directing: — 

1.  That  "the  Copyright  Act,  1911,  including  the  pro- 
visions as  to  existing  works,  shall,  subject  to  the  pro- 
visions of  the  said  Act  and  of  this  Order,  apply — 

"(a)  to  literary,  dramatic,  musical  and  artistic 
works  the  authors  whereof  were  at  the  time  of  the 
making  of  the  works  citizens  of  the  United  States  of 
America,  in  like  manner  as  if  the  authors  had  been 
British  subjects: 

"  (h)  in  respect  of  residence  in  the  United  States  of 
America,  in  like  manner  as  if  such  residence  had 
been  residence  in  the  parts  of  His  Majesty's  domin- 
ions to  which  the  said  Act  extends. 


APPENDIX  737 

"Provided  that— 

"(i)  the  term  of  copyright  within  the  parts  of  His 
Majesty's  dominions  to  which  this  Order  ai)plios  shall 
not  exceed  that  conferred  by  the  law  of  the  United 
States  of  America : 

"  (ii)  the  enjoyment  of  the  rights  conferred  by  this 
Order  shall  be  subject  to  the  accomplishment  of  the 
conditions  and  formalities  prescribed  by  the  law  of 
the  United  States  of  America: 

"(iii)  in  the  application  to  existing  works  of  the 
provisions  of  Section  24  of  the  Copyright  Act,  1911, 
the  commencement  of  this  Order  shall  be  substituted 
for  the  26th  July,  1910,  in  subsection  1  (6)." 

2.  That  ''this  Order  shall  apply  to  all  His  Majesty's 
dominions,  colonies  and  possessions  with  the  exception 
of  those  hereinafter  named,  that  is  to  say: — The  Dominion 
of  Canada,  The  Conamonwealth  of  Australia,  The  Do- 
minion of  New  Zealand,  The  Union  of  South  .\irica, 
Newfoundland." 

3.  That  "this  Order  shall  come  into  operation  on  the 
first  day  of  January,  1915,  which  day  is  in  this  Order 
referred  to  as  the  commencement  of  this  Order. 

"And  the  Lords  Commissioners  of  His  Majesty's 
Treasury  arc  to  give  the  necessary  Orders  accordingly." 

Now,  therefore,  I,  Woodrow  Wilson,  President  of  the 
United  States  of  America,  do  declare  and  proclaim  that 
one  of  the  alternative  conditions  specified  in  section  8  (6) 
of  the  Act  of  March  4,  1909,  now  exists  and  is  fulfille<l  in 
respect  to  the  subjects  of  Great  Britain  and  the  British 
dominions,  colonies  and  possessions,  with  the  exception 
of  Canada,  Australia,  New  Zealand,  South   Africa,  and 


738  APPENDIX 

Newfoundland,  and  that  such  subjects  shall  be  entitled 
to  all  the  benefits  of  section  1  (e)  of  the  said  Act,  on  and 
after  January  1,  1915. 

In  testimony  whereof,  I  have  hereunto  set  my  hand 
and  caused  the  seal  of  the  United  States  to  be  affixed. 
Done  at  the  City  of  Washington  this  first  day  of  Jan- 
uary, in  the  year  of  our  Lord  one  thousand  nine 
[seal]     hundred  and  fifteen,  and  of  the  Independence 
of  the  United  States  of  America  the  one  hun- 
dred and  thirty-ninth. 

WooDRow  Wilson. 
By  The  President: 
W.  J.  Bryan, 
Secretary  of  State. 

In  "The  Statutes  at  Large  of  the  United  States  of  America,  from 
March,  1913,  to  March,  1915."  Vol.  38,  part  2.  8vo.  Washington, 
1915,  pp.  2044-2045. 


rOP^T^ir.IIT  OF  LARELR  AND  PRINTS  DESIONKD 
TO  BE  ISED  roil  ARTICLES  OF  .\LVNUFAC- 
TURE 

The  new  copjTiglit  law  apj)r(ned  March  1,  VM),  ^oinj^ 
into  effect  on  July  1,  1909,  did  not  repeal  the  copyright 
act  of  June  18,  1874,  according  to  the  opinion  of  the 
Attornoy-Clcnoral,  of  December  22,  1909.  Labels  or 
prints  dosif^ncd  to  l)e  used  for  articles  of  manufacture 
should  therefore  be  registered  in  the  Patent  Office. 

Section  3  of  the  act  of  June  18,  1874,  reads  a.s  follows: 

Sec.  3.  That  in  the  construction  of  this  act  the  words  "engravinj?, 
cut,  and  print"  .shall  be  applied  only  to  pictorial  illustrations  or  works 
connected  with  the  fine  arts,  and  no  prints  or  labels  designed  to  be 
used  for  any  other  articles  of  manufacture  shall  be  entered  under  the 
copyright  law,  but  may  be  registered  in  the  Patent  Office.  And  the 
Commissioner  of  Patents  is  hereby  charged  with  the  supervision  and 
control  of  tlie  entry  or  registry  of  such  ])rints  or  labels,  in  conformity 
with  the  regulations  provided  by  law  as  to  copyright  of  prints,  except 
that  there  shall  be  paid  for  recording  the  title  of  any  print  or  lal)el,  not 
a  trade-mark,  six  dollars,  vvhich  shall  cover  the  expense  of  furnishing  a 
copy  of  the  record,  under  the  .seal  of  the  Commissioner  of  Patents,  to 
the  party  entering  the  same. 


739 


RULES  AND   REGULATIONS    FOR   THE  REGIS- 
TRATION   OF   CLAIMS   TO   COPYRIGHT 

(As  revised  and  issued  in  November,  1917) 

1.  Copyright  under  the  act  of  Congress  entitled:  "An 
act  to  amend  and  consolidate  the  acts  respecting  copy- 
right," approved  March  4,  1909/  is  ordinarily  secured  by 
printing  and  publishing  a  copyrightable  work  with  a 
notice  of  claim  in  the  form  prescribed  by  the  statute. 
Registration  can  be  made  after  such  publication,  but  the 
statute  expressly  provides,  in  certain  cases,  for  registra- 
tion of  manuscript  works. 

WHO   MAY   SECURE    COPYRIGHT 

2.  The  persons  entitled  by  the  act  to  copyright  protec- 
tion for  their  works  are : 

(1)  The  author  of  the  work,  if  he  is: 

(a)  A  citizen  of  the  United  States,  or 

(b)  An  alien  author  domiciled  in  the  United  States 
at  the  time  of  the  first  publication  of  his  work,  or 

(c)  A  citizen  or  subject  of  any  country  which  grants 
either  l)y  treaty,  convention,  agreement,  or  law,  to 

■  Amendatory  acts  were  approved  AuRUst  '21,  191 '2  (providing  for  the 
registration  of  motion  jai-tures),  March  2,  191:5  (amending  sec.  5.'),  with 
regard  to  the  certificate  of  registration) ,  and  March  2S,  1914  (amending 
nee.  12,  to  provide  for  dejjosit  of  only  one  copy  in  case  of  works  of  for- 
eign autliors  published  abroad  in  foreign  languages). 
740 


APPFA'DTX  741 

citizens  of  the  United  States  the  benefit  of  copy- 
right on  substantially  the  same  basis  as  to  its  own 
citizens.  The  existence  of  reciprocal  copyright 
conditions  is  determined  by  presidential  procla- 
mation.' 

'  Presidential  copyright  proclamatioas  have  been  i.s.sued  .securing 
copyright  privileges  in  the  United  States  to  the  citizens  or  subjects  of 
the  following  countries:  Austria,  Belgium.  Chile,  China,  Costa  Rica, 
C'uba,  Denmark,  Dominican  Kepubhc,  Ecuador,  France,  Germany, 
Great  Britain  and  the  British  possessions,  Guatemala,  Iloniluras,  Hun- 
gary, Italy,  Japan,  Luxemburg,  Mexico,  Netherlands  (Holland)  and 
possessions,  Nicaragua,  Norway,  Panama,  Portugal,  Salvador,  Spain, 
Sweden,  Switzerland,  and  Tunis. 

The  conunercial  treaty  with  China  of  October  N,  VMYA,  jjrodaimed  by 
the  President  on  .January  13,  11)04,  contains  Article  XI  relating  to 
copyright.  A  copyright  c(jnvention  with  .Japan  was  signed  at  Tokyo 
November  10,  1905,  and  proclaimed  in  the  United  States  on  May  17, 
1000.  Two  additional  treaties  with  Japan,  which  were  signed  at  Wash- 
ington May  11),  IDOS,  and  jmx'laimed  August  11,  IDOS,  deal  with  the 
protection  of  patents,  trade-marks,  and  cojjvrights  in  China  and  Korea, 
respectively.  The  copyright  convention  with  Hungary  was  signed  at 
Budapest  on  January  30,  1912,  and  was  proclaimed  by  the  President 
on  October  1.'),  1912. 

The  convention  to  prot<'ct  literary  and  artistic  property  signed  at 
Mexico  on  January  27,  1902,  was  proclaimed  by  the  President  on  April 
9,  1908,  who  aimounced  the  ratification  of  this  treaty  al.so  by  Costa 
Rica,  Guatemala,  Ilondunus,  Nicaragua,  and  Salvador.  The  Pan 
American  Copyright  Convention  signed  at  Buenos  Aires  on  August  11, 
1910,  was  proclaimed  on  July  1.3,  1911,  announcing  its  ratiticati<m 
also  by  the  Dominican  Republic,  Ecuador,  Guatemala,  Honduras, 
Nicaragua,  and  Panama.  Since  that  date  announcement  h:is  been 
made  of  the  adhesion  to  this  convention  of  Bolivia,  Brazil,  Costa  Rica, 
Paraguay,  and  Salvador. 

Copyright  proclamations  under  section  1  (e),  "to  secure  copyright 
controlling  the  |)arts  of  instruments  serving  to  reproduce  mechanic^iUy 


742  APPENDIX 

(2)  The  proprietor  of  a  work.  The  word  "proprietor" 
is  here  used  to  indicate  a  person  who  derives  his  title  to  the 
work  from  the  author.  If  the  author  of  the  work  should 
be  a  person  who  could  not  himself  claim  the  benefit  of  the 
copyright  act,  the  proprietor  can  not  claim  it. 

(3)  The  executors,  administrators,  or  assigns  of  the 
above-mentioned  author  or  proprietor. 

REGISTRATION 

3.  After  the  publication  of  any  work  entitled  to  copy- 
right, the  claimant  of  copyright  should  register  his  claim 
in  the  Copyright  Office.  An  action  for  infringement  of 
copyright  can  not  be  maintained  in  court  until  the  provi- 
sions with  respect  to  the  deposit  of  copies  and  registration 
of  such  work  shall  have  been  complied  with. 

A  certificate  of  registration  is  issued  to  the  claimant 
and  duplicates  thereof  may  be  obtained  on  payment  of 
the  statutory  fee  of  50  cents. 

SUBJECT-MATTER   OF   COPYRIGHT 

4.  The  act  provides  that  no  copyright  shall  subsist  in 
the  original  text  of  any  work  published  prior  to  July  1, 
1909,  which  has  not  been  already  copyrighted  in  the 
United  States  "or  in  any  publication  of  the  United  States 

musical  works"  have  becMi  issued  in  Ix'half  of  Hclnium  (June  14,  1!)1I), 
(Jul)a  (November  27,  1911),  Germany  (December  S,  1')1U),  Cireat 
liritain  (January  1,  11)15),  Italy  (May  1,  1915),  Luxemburg  (June  14, 
1*111),  New  ZealHiid  (December  1,  191(i),an(l  Norway  (June  14,  191  D. 
Protection  uiuier  this  section  is  also  included  in  tlic  co|)yriglit  conven- 
tion  with  Hungary,  proclaimed  on  Oi'tober  1."),  1912. 


APPENDIX  713 

government  or  any  reprint  iu  uhole  or  in  part  thereof" 

(see.  7). 

Section  o  of  the  act  names  the  thirteen  ehxsses  of  works 
for  which  copyriglit  may  he  secured,  as  follows: 

(a)  Books. — This  term  includes  "composite  and  cy- 
clopirdic  works,  directories,  gazetteers  and  other  com- 
])ilati()ns"  and  generally  all  printed  literary  works  (except 
dramatic  compositions)  wliether  i)ublished  in  the  ordi- 
nary shape  of  a  book  or  pamphlet,  or  printed  as  a  leaflet, 
card,  or  single  page.  The  term  "book"  as  used  in  the 
law  includes  tabulated  forms  of  information,  freciucntly 
called  charts;  tables  of  figures  showing  the  results  (jf 
mathematical  computations,  such  as  logarithmic  tables, 
interest,  cost,  and  wage  tables,  etc.,  single  poems,  anil 
the  words  of  a  song  when  printed  and  published  without 
music;  descriptions  of  motion  pictures  or  spectacles; 
catalogues;  circulars  or  folders  containing  information 
in  the  form  of  reading  matter  and  hterary  contributions  to 
periodicals  or  newspapers. 

5.  The  term  "book"  can  not  be  applied  to- 
Blank  books  for  use  in  Inisiness  or  in  carrying  out  any 
system  of  transacting  alTairs,  such  as  record  bt)()ks,  ac- 
count books,  memorandum  books,  blank  diaries  or  jour- 
nals, bank  deposit  and  check  books;  forms  of  contracts  or 
leases  which  do  not  contain  original  coi)yrightable  mat- 
ter; coupons;  forms  for  use  in  commercial,  legal,  or  finan- 
cial transactions,  which  are  wholly  or  partly  blank  and 
whose  value  li(^s  in  their  usefulness. 

G.  (b)  Pcriodicah.-—T\nii  t(M-m  includes  newspapers, 
magazines,  reviews,  and  seri.il  i)ublic:itions  appearing 
oftener  than  once  a  year;   bulletins  or  proceedings  of 


744  APPENDIX 

societies,  etc.,  which  appear  regularly  at  intervals  of  less 
than  a  year;  and,  generally,  periodical  publications  which 
would  be  registered  as  second-class  matter  at  the  post 
office.  Serial  publications  which  are  not  clearly  "periodi- 
cals" should  be  registered  as  books  and  the  appUcation 
for  registration  should  be  accompanied  by  the  required 
affidavit. 

7.  (c)  Lectures,  sermons,  addresses,  or  similar  produc- 
tions, prepared  for  oral  delivery. 

8.  (d)  Dramatic  and  dramatico-musical  compositions, 
such  as  dramas,  comedies,  operas,  operettas,  and  similar 
works. 

The  designation  ''dramatic  composition"  does  not  in- 
clude the  following:  Dances,  motion-picture  shows;  stage 
settings  or  mechanical  devices  by  which  dramatic  ef- 
fects are  produced,  or  "stage  business";  animal  shows, 
sleight-of-hand  performances,  acrobatic  or  circus  tricks 
of  any  kind;  scenarios  for,  or  descriptions  of  motion  pic- 
tures or  of  settings  for  the  production  of  motion  pictures. 
(These,  however,  when  printed  and  published,  are  regis- 
trable as  "books.") 

9.  Dramatico-musical  compositions  include  principally 
operas,  operettas,  and  musical  comedies,  or  similar  pro- 
ductions which  are  to  be  acted  as  well  as  sung. 

10.  {c)  Musical  compositions,  including  other  vocal  and 
instrumental  compositions,  with  or  without  words  and 
separately  published  songs  from  operas  and  operettas, 
when  not  intended  to  be  acted. 

The  words  of  a  song  printed  alone  should  be  registered 
as  a  "book,"  not  as  a  "musical  composition." 

"Adaptations"  and  "arrangements"  may  be  registered 


APPENDIX  74r) 

as  "new  works"  under  tlie  provisions  of  section  0.  Mere 
transpositions  into  different  keys  are  not  provided  for 
in  the  copyright  act. 

11.  (J)  Maps. — This  term  includes  all  cartographical 
works,  such  as  terrestrial  maps,  plats,  marine  charts,  star 
maps,  but  not  diagrams,  astrological  charts,  or  landscapes, 

12.  ((j)  TT^(>rA\s  of  art  aud  modeU  or  designs  for  works  of 
art. — This  tenn  includes  all  works  belonging  fairly  to  the 
so-called  fine  arts.    (Paintings,  drawings,  and  sculpture.) 

The  protection  of  productions  of  the  industrial  arts 
utilitarian  in  pur]:)ose  and  character  even  if  artistically 
made  or  ornamented  depends  ui)on  action  under  the 
patent  law;  but  registration  in  the  Cop>Tight  Office  has 
been  made  to  protect  artistic  drawings  notwithstanding 
they  may  afterwards  be  utilized  for  articles  of  manufac- 
ture. 

Toys,  games,  dolls,  advertising  novelties,  instruments 
or  tools  of  any  kind,  glassware,  embroideries,  garments, 
laces,  woven  fabrics,  or  similar  articles,  are  examj)les. 
The  exclusive  right  to  make  and  sell  such  articles  should 
not  be  sought  by  cop>Tight  registration. 

13.  (It)  Reprndurtions  of  works  of  ar/.— This  term  refers 
to  such  reproductions  (engravings,  woodcuts,  etchings, 
casts,  etc.)  as  contain  in  themselves  an  artistic  element 
distinct  from  that  of  the  original  work  of  art  which  lias 
been  reproduced. 

14.  (i)  Dratvings  or  pla.'itic  icorks  of  a  scientific  or  tech- 
nical  character. — This  term  includes  diagrams  or  models 
illustrating  scientific  or  technical  works,  architects'  plans, 
designs  for  engiun'riug  work,  n^lief  maps,  etc. 

15.  (j)  Photographs.— ')^hi^     term     covers     all     photcv 


746  APPENDIX 

graphic  prints,  but  not  half  tones  or  other  photo-engrav- 
ings. 

16.  (k)  Prints  and  pictorial  illustrations. — This  term 
comprises  printed  pictures,  such  as  Uthographs,  photo- 
engra\dngs,  etc. 

17.  (0  Motion-picture  photoplays. 

18.  (m)  Motion  pictures  other  than  photoplays. 

Postal  cards  can  not  be  copyrighted  as  such.  The 
pictures  thereon  may  be  registered  as  ''prints  or  pictorial 
illustrations"  or  as  ''photographs."  Text  matter  on  a 
postal  card  may  be  of  such  a  character  that  it  may  be 
registered  as  a  "book." 

Trade-marks  can  not  be  registered  in  the  Copyright 
Office.  AppUcation  should  be  made  to  the  Commissioner 
of  Patents. 

Labels  and  prints  for  articles  of  manufacture  are  re- 
quired by  the  Act  of  June  18,  1874,  to  be  registered  for 
copyright  in  the  Patent  Office.  The  CopjTight  Office  will 
register  a  claim  of  copyi-ight  in  a  pictorial  drawing  to 
protect  such  drawing;  but  if  it  is  used  for  a  label  or  print, 
the  label  or  print  should  be  registered  at  the  Patent  Office. 

HOW   TO   SECURE   REGISTRATION 

19.  Copyright  registration  may  be  secured  for: 

(1)  Unpublished  works. 

(2)  Published  works. 

UNPUBLISHED   WORKS 

Unpublished  works  are  sucli  as  h;i\('  not  al  the  \\mo  of 
registration  been  printed  or  r<'i)ro(hic('(l  in  (•()|)i('s  for  sale 


AIM'KNDIX  717 

or  1)0011  i)ui)licly  distributod.  'I'hoy  include  only  the 
works  (-numerated  in  Section  1 1  ;  Lectures,  sermons, 
addresses,  or  similar  productions  for  oral  delivery;  dra- 
matic nuisical  and  dramatico-musical  compositions;  pho- 
toj;raj)hs;  works  of  art  (paintings,  drawings  and  sculi>- 
tures);  plastic  works;  motion-picture  photoplays;  and 
motion  ])i('tures  other  than  ])li()to])lays. 

In  order  to  secure  coi)yright  in  such  uni)ublished  works, 
the  following  steps  are  necessary: 

20.  (1)  In  the  case  of  lectures,  sennons,  addresses,  and 
dramatic  musical  and  dramatico-musical  comi)ositions. 
doi)()sit  one  complete  copy  of  the  work. 

This  copy  (which  may  be  WTitten  <>r  t y])e\\Titten) 
should  be  in  c()nv(Miient  form,  clean  and  legible,  the  leaves 
securely  fastened  together,  and  should  bear  the  title  of 
the  work  corresponding  to  that  given  in  the  application. 

The  entire  work  in  each  case  should  be  deposited.  It 
is  not  sufficient  to  deposit  a  mere  outline  or  epitome,  or, 
in  the  case  of  a  ])lay,  a  mere  scenario,  or  a  scenario  with 
the  synopsis  of  the  dialogue. 

21.  (2)  In  the  case  of  uni)ublished  ])hotographs.  de- 
])osit  one  coi)y  of  the  work.  (Photo-engravings  or  jjhoto- 
gi-avuros  are  not  i)hotograplis  within  the  meaning  of  this 
provision.) 

22.  (3)  In  the  case  of  works  of  art,  models  or  designs 
for  W(jrks  of  art,  or  drawings  or  plastic  works  of  a  scientific 
or  technical  character,  ileposit  a  photograph  or  other 
identifying  reproduction. 

(4)  In  the  case  of  motion-picture  photoj)lays,  deposit 
a  title  and  description,  with  one  print  taken  from  each 
scene  or  act. 


748  APPENDIX 

(5)  In  the  case  of  motion  pictures  other  than  photo- 
plays, deposit  a  title  and  description,  with  not  less  than 
two  prints  taken  from  different  sections  of  the  complete 
motion  picture. 

In  each  case  the  deposited  article  must  be  accompanied 
by  a  claim  of  copyright,  an  apphcation  for  registration, 
and  a  money  order  for  the  amount  of  the  statutory  fee. 

23.  Any  work  which  has  been  registered  under  section 
11,  if  pubhshed,  i.  e.,  reproduced  in  copies  for  sale  or  dis- 
tribution, must  be  deposited  a  second  tmie  (accompanied 
by  an  application  for  registration  and  the  statutory  fee) 
in  the  same  manner  as  is  required  in  the  case  of  works 
published  in  the  first  place. 

PUBLISHED    WORKS 

Deposit  of  Copies 

24.  Promptly  after  first  publication  of  the  work  with 
the  copyright  notice  inscribed,  two  complete  copies  of  the 
best  edition  of  the  work  then  published  must  be  sent  to 
the  Copyright  Office,  with  a  proper  application  for  regis- 
tration correctly  filled  out  and  a  money  order  for  the 
amount  of  the  legal  fee. 

The  statute  reciuires  that  the  deposit  of  the  copyright 
work  shall  be  made  "promptly,"  which  has  been  defined 
as  "without  unnecessary  delay."  It  is  not  essential, 
however,  that  the  deposit  be  made  on  the  very  day  of 
publication. 

25.  Published  works  arc  such  as  are  ])riuted  or  other- 
wise produced  and  "placed  on  sale,  sold,  or  publictly 
distributed."     Works  intended   for  sale  or  general   dis- 


APPENDIX  749 

tribution  should  first  be  printed  with  the  statutor>'  form 
of  cojnTight  notice  inscribed  on  every  copy  published  or 
ofT(T('d  for  sale  in  the  United  States. 

The  following  works  cannot  be  registered  until  after 
they  have  been  published:  Books,  periodicals,  maps, 
prints  and  pictorial  illustrations. 

NOTICE    OF   COPYRIGHT 

26.  The  ordinary  form  of  copyright  notice  for  books, 
periodicals,  dramatic  and  musical  comj)ositioiis  is  "Copy- 
right, 19 —  (the  year  of  publication),  by  A.  B.  (the  name 
of  the  claimant)."  The  name  of  the  claimant  printed  in 
the  notice  should  be  the  real  name  of  a  living  person,  or 
his  trade  name  if  he  always  uses  one  (but  not  a  pseudonym 
or  j)en  name),  or  the  name  of  the  firm  or  corporation 
claiming  to  own  the  copjTight. 

27.  In  the  case  of  maps,  j)hotographs,  reproductions 
of  works  of  art,  prints  or  pictorial  illustrations,  works  of 
art,  models  or  designs  for  works  of  art,  and  plastic  works 
of  a  scientific  or  technical  character,  the  notice  may 
consist  of  the  letter  C,  inclosed  witliin  a  circle,  thus  (c), 
accompanied  by  the  initials,  monogram,  mark,  or  sjtu- 
bol  of  the  copyright  pr()i)rietor.  But  in  such  cases  the 
name  itself  of  the  copyright  proprietor  must  appear  on 
some  accessible  portion  of  the  work,  or  on  the  mount  of 
the  ])icture  or  map,  or  on  the  margin,  back,  or  permanent 
base  or  pedestal  of  the  work. 

2S.  The  prescribed  notice  must  be  affixed  to  each  copy 
of  the  work  j)ublished  or  olTereil  for  sale  in  the  United 
States.  But  no  notice  is  required  in  the  case  of  foreign 
books  printed  abroad  seeking  ad  interim  protection  in 


750  APPENDIX 

the  United  States,  as  provided  in  section  21  of  the  copy- 
right act. 

AMERICAN    MANUFACTURE    OF   COPYRIGHT   BOOKS 

29.  The  following  works  must  be  manufactured  in  the 
United  States  in  order  to  secure  copyright : 

(a)  All  "books"  in  the  English  language  and  books  in 
any  language'  by  a  citizen  or  domiciled  resident  of  the 
United  States  must  be  printed  from  type  set  within  the 
limits  of  the  United  States,  either  by  hand  or  by  the 
aid  of  any  kind  of  typesetting  machine,  or  from  plates 
made  within  the  limits  of  the  United  States  from  type 
set  therein,  or,  if  the  text  of  such  books  be  produced 
by  lithographic  process  or  photo-engraving  process,  then 
by  a  process  wholly  performed  within  the  limits  of  the 
United  States;  and  the  printing  of  the  text  and  binding 
of  the  book  must  be  performed  within  the  Umits  of  the 
United  States. 

(6)  All  illustrations  within  a  book  produced  by  litho- 
graphic process  or  photo-engraving  process  and  all  sepa- 
rate lithographs  or  photo-engravings  must  be  produced  by 
lithographic  or  ])hoto-engraving  process  wholly  performed 
within  the  limits  of  the  United  States,  except  when  the 
subjects  represented  in  such  illustrations  in  a  book  or 
such  separate  lithographs  or  photo-oiigravings  "are  lo- 
cated in  a  foreign  country  and  illustrate  a  scientific 
work  or  reproduce  a  work  of  art." 

30.  Books  by  foreign  authors  in  any  language  other 
than  English  are  not  required  to  be  printed  in  the  United 
States. 

In    the  cusc!  of  books  printed   iibroad    in    (he    lOnglish 


APPENDIX  751 

language  an  ad  interim  term  of  copyright  of  thirty  clays 
from  registration  made  in  the  Copyright  Office  within 
thirty  days  after  pubHcation  abroad  may  be  secured; 
but  in  order  to  extend  the  copyright  to  the  full  term  of 
protection,  an  edition  of  the  work  must  be  published  in 
the  United  States  within  the  thirty  days  ad  interim  term, 
printed  or  produced  within  the  limits  of  the  United  States 
as  required  in  section  15  of  the  copyright  act. 

APPLICATION    FOR   REGISTRATION 

31.  The  application  for  copyright  registration  required 
to  be  sent  with  each  work  must  state  the  following  facts: 

(1)  The  name,  nationality  and  exact  address  of  the 
claimant  of  co])yright. 

(2)  The  name  of  the  country  of  which  the  author  of 
the  work  is  a  citizen  or  subject. 

(3)  The  title  of  the  work. 

(4)  The  name  and  address  of  person  to  whom  certifi- 
cate is  to  be  sent. 

(5)  In  the  case  of  works  reproduced  in  copies  for  sale  or 
publicly  distributed,  the  actual  date  (year,  month,  and 
day)  when  the  work  was  published. 

32.  In  addition,  it  is  desirable  that  the  application 
should  state  for  record  the  name  of  the  author.  If,  how- 
ever, the  work  is  i)ublishcd  anonymously  or  under  a 
pseudonym  and  it  is  not  desired  to  place  on  record  the 
real  name  of  the  author,  this  may  be  omitted.  By  the 
nationahty  of  the  author  is  meant  citizenship,  not  race; 
a  person  naturalized  in  the  United  States  should  be  de- 
scribed as  a  citizen.  An  author,  a  citizen  of  a  foreign 
country  having  no  cop>Tight  relations  with  the  United 


752  APPENDIX 

States,  may  only  secure  copyright  in  this  country,  if 
at  the  time  of  publication  of  his  work  he  is  domiciled  in 
the  United  States.  The  fact  of  such  domicile  in  the  United 
States  should  be  expressly  stated  in  the  application,  in- 
cluding a  statement  of  this  place  of  domicile.  Care  should 
be  taken  that  the  title  of  the  work,  the  name  of  the  author, 
and  the  name  of  the  copyright  claimant  should  be  cor- 
rectly stated  in  the  application,  and  that  they  should 
agree  exactly  with  the  same  statements  made  in  the 
work  itself. 

APPLICATION   FORMS 

33.  The  Copyright  Office  has  issued  the  following  ap- 
plication forms,  which  will  be  furnished  on  request,  and 
should  be  used  when  applying  for  copyright  registration: 

Al.  New  book  printed  and  published  for  the  first  time 
in  the  United  States;  aleo  United  States  edition  of  Eng- 
lish book. 

A2.  Book  reprinted  in  the  United  States  with  new 
copyright  matter. 

A3.  Book  by  foreign  author  in  foreign  language. 

A4.  Ad  interim  for  30  days  for  book  pubUshed  abroad 
in  the  English  language. 

A5.  Contribution  to  a  newspaper  or  periodical. 

Bl.  Periodical.    For  registration  of  single  issue. 

B2.  Periodical.    For  use  with  trust  fund. 

C.  Lecture,  sermon,  or  address. 

Dl.  Pul)lishod  dramatic  composition. 

D2.   Dramatic  composition  not  reprochurcd  for  sale. 

D3.  Published  dramatico-musical  composition. 

D4.  Unpublishetl  dramatico-musical  composition. 


APPENDIX  T.').'} 

E.  New  musical  composition  pul}lishcd  for  tlic  lirst 
time. 

El.  Musical  composition  republished  with  now  copy- 
right matter. 

E2.  Musical  composition  not  reproduced  for  sale. 

F.  Published  map. 

G.  Work  of  art  (painting,  drawing,  or  sculpture);  or 
model  or  design  for  a  work  of  art. 

11.  Published  drawing  or  plastic  work  of  a  scientific  or 
technical  character. 

12.  Unpublished  drawing  or  plastic  work  of  a  scientific 
or  technical  character. 

Jl.  Photograph  published  for  sale. 

J2.  Photograph  not  reproduced  for  sale. 

K.  Print  or  pictorial  illustration. 

LI.  Motion-picture  photoplay  reproduced  for  sale. 

L2.  Motion-picture  photoplay  not  reproduced  for  sale. 

Ml.  Motion  picture,  not  a  photoplay,  reproduced  for 
sale. 

M2.  Motion  picture,  not  a  photoplay,  not  reproduced 
for  sale. 

Rl.  Renewal  of  a  copyright  for  28  years. 

R2.  Extension  of  a  renewal   copyright  for   14  years. 

U.  Notice  of  use  of  music  on  mechanical  instruments. 

AFFID.WIT   OF    MANUFACTURE 

34.  In  the  ca.se  of  books  by  American  authors  and  all 
books  in  the  English  language  the  application  must  be 
accompanied  by  an  affidavit,  showing  the  following  facts: 

(1)  That  tlie  copies  depositeil  have  been  printed  from 
type  set  within  the  limits  of  the  United  States;  or  from 


754  APPENDIX 

plates  made  within  the  limits  of  the  United  States  from 
type  set  therein;  or  if  the  text  be  produced  by  litho- 
graphic process  or  photo-engraving  process,  that  such 
process  was  wholly  performed  within  the  limits  of  the 
United  States,  stating,  in  either  case,  the  place  and 
the  establishment  where  such  work  was  done. 

(2)  That  the  printing  of  the  text  has  been  performed 
within  the  limits  of  the  United  States,  showing  the  place 
and  the  name  of  the  establishment  doing  the  work. 

(3)  That  the  binding  of  such  book  (if  bound)  has  been 
performed  within  the  Umits  of  the  United  States,  showing 
the  place  and  the  name  of  the  estabUshment  where  the 
work  was  done. 

(4)  That  the  completion  of  the  printing  of  said  book 
was  on  a  stated  day,  or  that  the  book  was  published  on  a 
given  date. 

Section  62  of  the  copyright  act  defines  the  date  of  pub- 
lication (in  the  case  of  a  work  of  which  copies  are  repro- 
duced for  sale  or  distribution)  as  "the  earUcst  date  when 
copies  of  the  first  authorized  edition  were  placed  on  sale, 
sold,  or  publicly  distributed  by  the  proprietor  of  the  copy- 
right or  under  his  authority." 

35.  The  affidavit  may  be  made  before  any  officer 
authorized  to  administer  oaths  within  the  United  States 
who  can  affix  his  offiicial  seal  to  the  instrument. 

The  affiant  and  the  officer  administering  the  oath 
for  such  affidavit  are  specially  requested  to  make  sure 
that  the  instrument  is  properly  executed,  so  as  to  avoid 
the  delay  of  having  it  returned  for  amendment.  Ex- 
I)(;ri('n(;e  shows  tliat.  among  the  conmion  errors  made  by 
ap[)licants  are  the  following: 


APPENDIX  755 

Failure  to  write  in  the  "venue" — that  is,  the  name  of 
the  county  and  State — and  to  make  sure  that  the  no- 
tary's statement  agrees. 

Recilinj!;  a  corporation  or  partnership  as  affiant.  Oaths 
can  ho  taken  only  by  individuals. 

Failure  to  state  in  what  capacity  the  affiant  makes  the 
oath,  whether  as  claimant,  agent  of  the  claimant,  or 
printer.  Where  a  corporation  or  firm  is  the  claimant, 
the  affiant  should  swear  as  agent. 

Failure  to  state  the  exact  date  of  publication  or  com- 
pletion of  printing.     The  month  alone  is  insufTicient. 

Failure  to  sign  the  affidavit.  The  signature  should 
correspond  exactly  with  the  name  of  the  affiant  stated 
at  the  beginning.  Corporation  or  firm  names  must  not 
appear  in  this  place. 

Failure  to  obtain  signature  of  the  notary  after  swear- 
ing to  the  contents. 

Failure  to  obtain  the  seal  of  the  notary. 

Swearing  before  an  officer  not  authorized  to  act  in  the 
place  stated  in  the  venue,  or  an  officer  who  has  no  official 
seal. 

Variance  between  names  and  dates  as  stated  in  the 
affidavit  and  the  api)licati()n. 

The  affidavit  must  never  be  made  before  publication 
has  taken  j)laco. 

3().  The  affidavit  may  be  made  by:  (1)  The  person 
claiming  the  copyright;  or  (2)  his  duly  authorized  agent 
or  representative  residing  in  the  United  States;  or  (3) 
the  printer  who  has  printed  the  book. 

The  person  making  the  afiidavit  shoukl  state  in  whicli 
of  the  above-mentioned  capacities  he  does  so. 


756  APPENDIX 

37.  In  the  case  of  a  foreign  author  applying  for  a  book 
in  a  language  other  than  English,  no  affidavit  is  required, 
as  such  books  are  not  subject  to  the  manufacturing  clause. 

In  the  case  of  a  foreign  author  applying  for  a  book  in 
the  English  language,  the  same  affidavit  must  be  made 
as  in  that  of  an  American  author,  except  where  a  book 
is  deposited  for  ad  interim  protection  under  section  21. 
In  such  cases  the  affidavit  must  be  filed  when  the  ad  in- 
terim copyright  is  sought  to  be  extended  to  the  full  term 
by  the  publication  of  an  edition  printed  in  the  United 
States. 

The  affidavit  is  only  required  for  BOOKS. 

PERIODICALS    (form   b) 

38.  Application  should  be  made  in  the  same  manner 
as  for  books,  depositing  two  copies,  but  no  affidavit  is 
required. 

Separate  registration  is  necessary  for  each  number  of 
the  periodical  published  with  a  notice  of  copyright,  and 
•can  only  be  made  after  pul)lication.     It  is  not  possible 
to  register  the  title  of  the  periodical  in  advance  of  pub- 
lication. 

CONTRIBUTIONS   TO   PERIODICALS    (fORM   a5) 

39.  If  special  registration  is  requested  for  any  contri- 
bution to  a  periodical,  one  copy  of  the  number  of  the 
periodical  in  which  the  contribution  appears  should  be 
deposited  promptly  after  publication. 

The  entire  copy  should  be  sent;  sending  a  mere  clip- 
ping or  page  confaining  the  contribulion  does  not  com- 
ply with  llic  slalute. 


APPENDIX  757 

Tho  (late  of  publication  of  a  periodical  is  not  necessa- 
rily the  (late  stated  on  the  title-page.  The  application 
should  state  the  day  on  which  the  issue  is  "first  placed 
on  sale,  sold,  or  publicly  distributed."  which  may  be  ear- 
lier or  later  than   the  date  printed  on   the   title-page. 

.\D   INTERIM    APPLICATIONS    (fORM   a4) 

40.  ^^^lere  a  book  in  the  English  language  has  been 
printed  abroad,  an  ad  interim  coi)yright  may  be  secured 
by  depositing  in  the  Cop>Tight  Office  one  complete  copy 
of  the  foreign  edition,  with  an  application  containing  a 
request  for  the  reservation  and  a  money  order  for  SI. 
Such  applications  should  state:  (1)  Name  and  nation- 
ality of  tlie  author;  (2)  Name,  nationality,  and  address 
of  th(^  ('()i\vright  claimant;  (3)  Exact  date  of  original 
publication  abroad. 

The  deposit  must  be  made  not  later  than  thirty  days 
after  its  pubhcation  abroad.  AMienever,  within  the  thirty 
days'  period  (jf  ad  interim  protection,  an  authorized  edi- 
tion manufactured  in  the  United  States  has  been  i)ub- 
lished  and  two  copies  have  thereafter  been  promptly 
de})osited,  the  cojn'right  claim  therein  may  be  registered 
the  same  as  any  other  book  (Form  Al). 

MAILING    APPLICATIONS   AND   COPIES 

41.  All  dei)osits  and  other  material  intended  for  the 
Copyright  0(Tic(^  should  be  addressed  to  the  "Register  of 
Copyrights,  Library  of  Congress,  Washington,  D.  C." 
Letters  dealing  with  co])yright  matters  should  not  be 
addressed  to  clerks  or  individuals  in  the  Co]nTight  Office. 

The  copies  of  works  sent  to  be  registered  for  copy- 


758  APPENDIX 

right  may  be  mailed  to  the  Copyright  Office  free  (under 
sec.  14  of  the  copyright  law)  if  directly  deUvered  for  that 
purpose  to  the  postmaster,  who  will  attach  his  frank  label 
to  the  parcel.  The  Copyright  Office  can  not  furnish 
franking  labels. 

The  money  order  (or  other  remittance)  to  pay  the 
statutory  registration  fee  is  not  entitled  to  free  postal 
transmission  according  to  the  ruling  of  the  Post  Office 
Department.  This  with  the  application  should  therefore 
be  forwarded  in  an  envelope,  to  which  letter  postage  has 
been  affixed,  addressed  to  the  Register  of  Copyrights. 

FEES 

42.  The  fee  required  to  be  paid  for  copyright  registra- 
tion is  $1,  except  that  in  case  of  photographs  it  is  only 
50  cents  when  no  certificate  of  registration  is  desired. 

All  remittances  to  the  Copyright  Office  should  be  sent 
by  money  order  or  bank  draft.  Postage  stamps  should 
not  be  sent  for  fees  or  postage.  Checks  can  not  be  ac- 
cepted unless  certified.  Coin  or  currency  inclosed  in  let- 
ter or  packages  if  sent  will  be  at  the  remitter's  risk. 

Publishers  may  for  their  own  convenience  deposit  in 
the  Copyright  Office  a  sum  of  money  in  advance  against 
which  each  registration  will  be  charged. 

ASSIGNMENTS   OF   COPYRIGHT 

43.  When  a  copyright  has  been  assigned  the  instru- 
ment in  writing  signed  by  the  proprietor  of  the  copyright 
may  be  filed  in  this  office  for  record  within  six  calendar 
months   after   its   execution   without    the   limits   of   the 


APPENDIX  759 

United  States  or  three  calendar  months  within  the  United 
States. 

After  having  been  recorded  the  original  assignment  will 
be  returned  to  the  sender  with  a  sealed  certificate  of 
record  attached.  The  assignment  will  be  returned  by 
registered  mail,  if  the  post-office  registration  fee  (10 
cents)  is  sent  for  that  purpose. 

44.  The  fee  for  recording  and  certifying  an  assignment 
is  SI  up  to  300  words;  S2  from  300  to  1,000  words;  and 
another  dollar  for  each  additional  thousand  words  or 
fraction  thereof  over  300  words. 

45.  After  the  assignment  has  been  duly  recorded,  the 
assignee  may  substitute  his  name  for  that  of  the  assignor 
in  the  copyright  notice  on  the  work  assigned.  Such  sub- 
stitution or  transfer  of  ownership  will  be  indexed  in  this 
office  upon  request,  at  a  cost  of  10  cents  for  each  work 
assigned. 

NOTICE   OF   USER   OF   MUSICAL   COMPOSITIONS 

46.  \Mienever  the  owner  of  the  copyright  in  a  musical 
composition  uses  such  music  upon  the  parts  of  instru- 
ments serving  to  reproduce  it  mechanically  himself  or 
permits  anyone  else  to  do  so,  he  nmst  send  a  notice  of 
such  use  by  him  or  by  any  other  person  to  the  Copyright 
Office  to  be  recorded.' 

47.  \Mienever  any  person  in  the  absence  of  a  license 
intends  to  use  a  coi)yrighted  musical  composition  upon 

'Presidential  proclamations  liavo  lioow  issued  under  soction  1  (e), 
securing  "copyrif^ht  controlling  the  parts  of  instruments  scTving  to 
reproduce  mechanically  the  musical  work"  in  hehalf  of  lielpium,  Cuba, 
Germany,  (!reat  Britain,  Hungary,  Italy,  Luxemburg,  New  Zealand 
and  Nor\vay. 


760  APPENDIX 

the  parts  of  instruments  serving  to  reproduce  the  same 
mechanically,  the  act  requires  that  he  shall  serve  notice 
of  such  intention  upon  the  copyright  proprietor  and  must 
also  send  a  duphcate  of  such  notice  to  the  Copyright 
Office. 

APPLICATION   FOR   THE   RENEWAL   OR   EXTENSION   OF   SUB- 
SISTING  COPYRIGHTS 

48.  Application  for  the  renewal  or  extension  of  a  sub- 
sisting cop>Tight  may  be  filed  within  one  year  prior  to 
the  expiration  of  the  existing  term  by: 

(1)  The  author  of  the  work  if  still  living; 

(2)  The  widow,  widower,  or  children  of  the  author  if 
the  author  is  not  living; 

(3)  The  author's  executor,  if  such  author,  widow,  wid- 
ower, or  children  be  not  living; 

(4)  If  the  author,  widow,  widower,  and  children  are 
all  dead,  and  the  author  left  no  will,  then  the  next  of  kin. 

49.  If  the  work  be  a  composite  work  upon  which  copy- 
right was  originally  secured  by  the  proprietor  thereof, 
then  such  proprietor  is  entitled  to  the  privilege  of  re- 
newal and  extension. 

50.  The  fee  for  the  recording  of  the  renewal  claim  is 
50  cents.  Application  for  the  renewal  or  extension  of 
copyright  can  not  be  recorded  in  the  name  of  an  assignee 
nor  in  that  of  any  person  not  expressly  mentioned  in 
section  24  of  the  act. 

SEARCHES 

51.  Upon  !ii)i)licafi()n  to  the  Register  of  Copyrights 
search  of  the  records,  indexes,  or  deposits  will  l)e  made 


APPENDIX  701 

for  such  information  as  tlipy  may  contain  relative  to 
copyright  claims.  Persons  desiring  searches  to  be  made 
should  state  clearly  the  nature  of  the  work,  its  title,  the 
name  of  the  claimant  of  copyright  and  probable  date  of 
entry;  in  the  case  of  an  assignment,  the  name  of  the  as- 
signor or  assignee  or  both,  and  the  name  of  the  copyright 
claimant  and  the  title  of  the  music  referred  to  in  case  of 
notice  of  user.' 

The  statutory  fee  for  searches  is  50  cents  for  each  full 
hour  of  time  consumed  in  making  such  search. 

»  Note.— The  law  provides  as  follows:  "That  the  record  books  of  the 
copyriglit  offico,  together  with  the  indexes  to  such  record  hooks,  and  all 
works  deposited  and  retained  in  the  copyright  office,  shall  be  open  to 
pul)lic  inspection;  and  copies  may  be  taken  of  the  copyright  entries 
actually  made  in  .such  record  books,  subject  to  such  safeguards  and 
regulations  as  shall  be  prescribed  by  the  register  of  copyrights  and 
approved  by  the  Librarian  of  Congress."    (Sec.  58,  act  of  Mar.  4, 1909.) 


BRITISH  COPYRIGHT  ACT  OF  1911 
(1  &  2  Geo.  5.     Ch.  46) 

CHAPTER  46 

AN  ACT  to  amend  and  consolidate  the  Law  relating  to  Copyright. 
[16th  December,  1911.] 

^e  it  enacted  by  the  Kmg's  most  Excellent  Majesty,  by 
and  with  the  advice  and  consent  of  the  Lords  Spiritual  and 
Temporal,  and  Commons,  in  this  present  Parliament 
assembled,  and  by  the  authority  of  the  same,  as  follows: 

Part  I 
IMPERIAL  COPYRIGHT 

RIGHTS 

1.  (1)  Subject  to  the  provisions  of  this  Act,  copyright 
shall  subsist  throughout  the  parts  of  His  Majesty's 
dominions  to  which  this  Act  extends  for  the  term  herein- 
after mentioned  in  every  original  hterary,  dramatic, 
musical  and  artistic  work,  if — 

(a)  in  the  case  of  a  published  work,  the  work  was  first 

published  within  such  parts  of  His  Majesty's 
dominion.s  as  aforesaid;  and 

(b)  in  the  case  of  an  unpublislied  work,  the  author  was 

at  the  date  of  the  making  of  the  work  a  British 
subject   or   resident   within    such    parts   of   His 
Majesty's  dominions  as  aforesaid; 
762 


APPENDIX  763 

})iit  in  no  other  works,  oxoopt  so  far  as  the  protection 
ronferred  l)y  tliis  Act  is  extended  by  Orders  in  ( "ouncil 
thereunder  relating  to  self-governing  dominions  to  which 
this  Act  does  not  extend  and  to  foreign  countries. 

(2)  For  the  i)urposes  of  this  Act,  "copyright"  means 
the  sole  right  to  j)roduce  or  reproduce  the  work  or  any 
substantial  part  thereof  in  any  material  form  whatsoever, 
to  perform,  or  in  the  case  of  a  lecture  to  deliver,  the  work 
or  any  substantial  part  thereof  in  public;  if  the  work  is 
unpublished,  to  j)ublish  the  work  or  any  substantial  part 
thereof;  and  shall  include  the  sole  right, — 

(a)  to  produce,   reproduce,   perform,   or  i)ul)lish   any 

translation  of  the  work; 
(6)  in  the  case  of  a  dramatic  work,  to  convert  it  into  a 

no\'el  or  other  non-dramatic  work; 

(c)  in  the  case  of  a  novel  or  other  non-dramatic  work, 

or  of  an  artistic  work,  to  convert  it  into  a  dra- 
matic work,  by  way  of  performance  in  public  or 
otherwise; 

(d)  in   the   case   of  a   literary,    dramatic,    or   musical 

work,  to  make  any  record,  perforated  roll,  cine- 
matograph film,  or  other  contrivance  by  means 
of  which   (he   work   may   be  mechanically   per- 
formed or  deliveretl, 
and  to  authorize  any  such  acts  as  aforesaid. 

(3)  For  the  purposes  of  this  Act,  publication,  in  rela- 
tion to  any  work,  means  the  issue  of  coj)ies  of  the  work 
to  the  public,  and  does  not  include  the  performance  in 
public  of  a  dramatic  or  musical  work,  the  delivery  in 
public  of  a  lecture,  the  ('xhii)ition  in  public  of  an  artistic 
work,  or  the  construction  of  an  architectural  work  of  art, 


764  APPENDIX 

but,  for  the  purposes  of  this  provision,  the  issue  of  pho- 
tographs and  engravings  of  works  of  sculpture  and  archi- 
tectural works  of  art  shall  not  be  deemed  to  be  publication 
of  such  works. 

2.  (1)  Copyright  in  a  work  shall  be  deemed  to  be 
infringed  by  any  person  who,  without  the  consent  of  the 
owner  of  the  copyright,  does  anything  the  sole  right  to  do 
which  is  by  this  Act  conferred  on  the  owner  of  the  copy- 
right: Provided  that  the  following  acts  shall  not  consti- 
tute an  infringement  of  copyright : 

(i)  Any  fair  dealing  with  any  work  for  the  purposes  of 
private    study,    research,    criticism,    review,    or 
newspaper  summary: 
(ii)  Where  the  author  of  an  artistic  work  is  not  the 
owner  of  the  copyright  therein,  the  use  by  the 
author  of  any  mould,  cast,  sketch,  plan,  model, 
or  study  made  by  him  for  the  purpose  of  the 
work,  provided  that  he  does  not  thereby  repeat 
or  imitate  the  main  design  of  that  work: 
(iii)  The  making  or  publishing  of  paintings,  drawings, 
engravings,  or  photographs  of  a  work  of  sculp- 
ture or  artistic  craftsmanship,  if  permanently 
situate  in  a  public  place  or  building,   or  the 
making  or  publishing  of  paintings,   drawings, 
engravings,  or  photographs  (which  are  not  in 
the  nature  of  architectural  drawings  or  plans) 
of  any  architectural  work  of  art: 
(iv)  The  pul^lication  in  a  collection,  mainly  composed 
of   non-copyright   matter,    bona   fide   intended 
for  the  use  of  schools,  and  so  described  in  the 
title  and  in  any  advertisements  issued  by  the 


APPENDIX  765 

publisher,  of  short  piissages  from  published  lit- 
erary works  not  themselves  published  for  the 
use  of  schools  in  which  copyright  subsists:  Pro- 
vided that  not  more  than  two  of  sucli  passages 
from  works  by  the  same  author  are  pul)lished 
by  the  same  publisher  within  five  years,  and 
that  the  source  from  which  such  passages  are 
taken  is  acknowledged : 

(v)  The  publication  in  a  newspaper  of  a  report  of  a 
lecture  delivered  in  public,  unless  the  report  is 
prohibited  by  conspicuous  written  or  printed 
notice  affixed  before  and  maintained  during  the 
lecture  at  or  about  the  main  entrance  of  the 
building  in  which  the  lecture  is  given,  and, 
except  whilst  the  building  is  being  used  for 
public  worship,  in  a  position  near  the  lecturer; 
but  nothing  in  this  paragraph  shall  afTect  the 
provisions  in  paragraph  (i)  as  to  newspaper 
summaries : 

(vi)  The  reading  or  recitation  in  public  by  one  person  of 
any  reasonable  extract  from  any  published  work. 

(2)  Copyright  in  a  work  shall  also  be  deemed  to  be 
infringed  by  any  person  who— 

(a)  sells  or  lets  for  hire,  or  by  way  of  trade  exposes  or 
offers  for  sale  or  hire;  or 

(6)  distributes  either  for  the  purposes  of  trade  or  to 
such  an  extent  as  to  affect  prejudicially  the 
owner  of  the  copyright;  or 

(c)  by  way  of  trade  exhibits  in  public;  or 

{d)  imports  for  sale  or  hire  into  any  part  of  His  .Maj- 
esty's dominions  to  which  this  Act  extends, 


766  APPENDIX 

any  work  which  to  his  knowledge  infringes  copyright  or 
would  infringe  copyright  if  it  had  been  made  within  the 
part  of  His  Majesty's  dominions  in  or  into  which  the  sale 
or  hiring,  exposure,  offering  for  sale  or  hire,  distribution, 
exhibition,  or  importation  took  place. 

(3)  CopjT-ight  in  a  work  shall  also  be  deemed  to  be 
infringed  by  any  person  who  for  his  private  profit  permits 
a  theatre  or  other  place  of  entertainment  to  be  used  for 
the  performance  in  public  of  the  work  without  the  consent 
of  the  owner  of  the  copyright,  unless  he  was  not  aware, 
and  had  no  reasonable  ground  for  suspecting,  that  the 
performance  would  be  an  infringement  of  copyright. 

3.  The  term  for  which  copyright  shall  subsist  shall, 
except  as  otherwise  expressly  provided  by  this  Act,  be 
the  life  of  the  author  and  a  period  of  fifty  years  after  his 
death : 

Provided  that  at  any  time  after  the  expiration  of 
twenty-five  years,  or  in  the  case  of  a  work  in  which  copy- 
right subsists  at  the  passing  of  this  Act  thirty  years,  from 
the  death  of  the  author  of  a  published  work,  copyright 
in  the  work  shall  not  be  deemed  to  be  infringed  by  the 
reproduction  of  the  work  for  sale  if  the  person  reproducing 
the  work  proves  that  he  has  given  the  prescribed  notice 
in  writing  of  his  intention  to  reproduce  the  work,  and 
that  he  has  paid  in  the  prescribed  manner  to,  or  for  the 
bencfif-  of,  the  owner  of  the  copyright  royalties  in  respect 
of  all  copies  of  the  work  sold  l^y  him  calcuhiled  at  the 
rate  of  ten  per  cent,  on  the  price  at  which  he  publishes 
the  work;  and,  for  the  purposes  of  this  j:)r()viso,  the  Hoard 
of  Trade  may  make  regulations  pres('ril)ing  the  mode  in 
which  notices  are  to  be  given,  and  the  particulars  to  be 


APPENDIX  7(37 

given  in  sucli  notices,  and  tlic  mode,  time,  and  frequency 
of  the  payment  of  royalties,  including  (if  they  think  fit) 
regulations  reciuiring  payment  in  advance  or  otherwise 
securing  the  payment  of  royalties. 

4.  If  at  any  time  after  the  death  of  the  author  of  a 
literary,  dramatic,  or  nmsical  work  which  has  been  pub- 
lished or  performed  in  public  a  complaint  is  made  to  the 
Judicial  Conunittee  of  the  Privy  Council  that  the  owner 
of  the  copyright  in  the  work  has  refused  to  republish  or 
to  allow  the  republication  of  the  work  or  has  refused  to 
allow  the  performance  in  public  of  the  work,  and  that  by 
reason  of  such  refusal  the  work  is  withheld  from  the 
j)ublic,  the  owner  of  the  copyi'ight  may  Ije  ordered  to 
grant  a  license  to  reproduce  the  work  or  j)erform  the 
work  in  public,  as  the  case  may  be,  on  such  terms  and 
subject  to  such  conditions  as  the  Judicial  Committee 
may  think  fit. 

5.  (1)  Subject  to  the  j^rovisions  of  this  Act,  the  author 
of  a  work  shall  be  the  first  owner  of  the  copyright  therein: 

Provided  that — 

(a)  where,  in  the  case  of  an  engraving,  photograi)h,  or 

portrait,  the  jjlate  or  other  original  was  ordered 
by  some  other  person  and  was  made  for  valuable 
consideration  in  pursuance  of  that  order,  then, 
in  the  absence  of  any  agreement  to  the  contrary, 
the  person  by  whom  such  ])late  or  other  original 
was  ordered  shall  be  the  first  owner  of  the  copy- 
right; and 

(b)  where  the  author  was  in  the  employment  of  some 

other  person  under  a  contract  of  service  or 
apprenticeship  and   the  work  was  made  in   the 


768  APPENDIX 

course  of  his  employment  by  that  person,  the 
person  by  whom  the  author  was  employed  shall, 
in  the  absence  of  any  agreement  to  the  contrary, 
be  the  first  owner  of  the  copyright,  but  where 
the  work  is  an  article  or  other  contribution  to  a 
newspaper,  magazine,  or  similar  periodical,  there 
shall,  in  the  absence  of  any  agreement  to  the 
contrary,  be  deemed  to  be  reserved  to  the  author 
a  right  to  restrain  the  publication  of  the  work, 
otherwise  than  as  part  of  a  newspaper,  maga- 
zine, or  similar  periodical. 
(2)  The  owner  of  the  copyright  in  any  work  may 
assign  the  right,  either  wholly  or  partially,  and  either 
generally  or  subject  to  Umitations  to  the  United  Kingdom 
or  any  self-governing  dominion  or  other  part  of  His 
Majesty's   dominions   to   which   this   Act   extends,   and 
either  for  the  whole  term  of  the  copyright  or  for  any  part 
thereof,   and  may  grant  any  interest  in  the  right  by 
license,  but  no  such  assignment  or  grant  shall  be  valid 
unless  it  is  in  writing  signed  by  the  owner  of  the  right  in 
respect  of  which  the  assignment  or  grant  is  made,  or  by 
his  duly  authorized  agent : 

Provided  that,  where  the  author  of  a  work  is  the  first 
owner  of  the  copyright  therein,  no  assignment  of  the 
copyright,  and  no  grant  of  any  interest  therein,  made  by 
him  (otherwise  than  by  will)  after  the  passing  of  this  Act, 
shall  be  operative  to  vest  in  the  assignee  or  grantee  any 
rights  with  respect  to  the  copyright  in  the  work  beyond 
the  expiration  of  twenty-five  years  from  the  death  of  the 
author,  and  the;  reversionary  interest,  in  the  copyright 
expectant  on  the  termination  of  that  period  shall,  on  the 


APPENDIX  769 

death  of  tlic  author,  notwithstiinding  any  agreement  to 
the  (;ontrary,  devolve  on  his  legal  personal  representatives 
as  part  of  his  estate,  and  any  agreement  entered  into  by 
him  as  to  the  disposition  of  such  reversionary  interest 
shall  be  null  and  void,  but  nothing  in  this  proviso  shall  be 
construed  as  applying  to  the  assignment  of  the  copy- 
right in  a  collective  work  or  a  license  to  publish  a  work  or 
part  of  a  work  as  part  of  a  collect i\-e  work. 

(3)  Where,  under  any  partial  assignment  of  copyright, 
the  assignee  becomes  entitled  to  any  right  comprised  in 
copyright,  the  assignee  as  respects  the  right  so  assigned, 
and  the  assignor  as  respects  the  rights  not  assigned,  shall 
be  treated  for  the  purposes  of  this  Act  as  the  owner  of  the 
copyright,  and  the  provisions  of  this  Act  shall  have  effect 
accordingly. 

CIVIL   REMEDIES 

6.  (1)  Where  copyright  in  any  work  has  been  in- 
fringed, the  owner  of  the  copyright  shall,  except  as  other- 
wise providetl  by  this  Act,  be  entitled  to  all  such  remedies 
by  way  of  injunction  or  interdict,  damages,  accounts,  and 
otherwise,  as  are  or  may  be  conferred  by  law  for  the  in- 
fringement of  a  right. 

(2)  The  costs  of  all  parties  in  any  proceedings  in  re- 
spect of  the  infringement  of  copyright  shall  be  in  the 
absolute  discretion  of  the  Court. 

(3)  In  any  action  for  infringement  of  copyright  in  any 
work,  the  work  shall  be  presumed  to  be  a  work  in  which 
copyright  subsists  and  the  {)laintiff  shall  be  presumed  to 
be  the  owner  of  the  copyright,  unless  the  (l(>fendant  puts 
in  issue  the  existence  of  the  copyright,  or,  as  tlie  case  may 


770  APPENDIX 

be,  the  title  of  the  plaintiff,  and  where  any  such  question 
is  in  issue,  then — 

(a)  if  a  name  purporting  to  be  that  of  the  author  of  the 

work  is  printed  or  otherwise  indicated  thereon 
in  the  usual  manner,  the  person  whose  name  is  so 
printed  or  indicated  shall,  unless  the  contrary  is 
proved,  be  presumed  to  be  the  author  of  the 
work; 

(b)  if  no  name  is  so  printed  or  indicated,  or  if  the  name 

so  printed  or  indicated  is  not  the  author's  true 
name  or  the  name  by  which  he  is  commonly 
known,  and  a  name  purporting  to  be  that  of  the 
publisher  or  proprietor  of  the  work  is  printed  or 
otherwise  indicated  thereon  in  the  usual  manner, 
the  person  whose  name  is  so  printed  or  indicated 
shall,  unless  the  contrary  is  proved,  be  presumed 
to  be  the  owner  of  the  copyright  in  the  work  for 
the  purposes  of  proceedings  in  respect  of  the 
infringement  of  copyright  therein. 

7.  All  infringing  copies  of  any  work  in  which  copyright 
subsists,  or  of  any  substantial  part  thereof,  and  all  plates 
used  or  intended  to  be  used  for  the  production  of  such  in- 
fringing copies,  shall  be  deemed  to  be  the  property  of  the 
owner  of  the  copyright,  who  accordingly  may  take  pro- 
ceedings for  the  recovery  of  the  possession  thereof  or  in 
respect  of  the  conversion  thereof. 

8.  Wlierc  proceedings  are  taken  in  respect  of  the  in- 
fringement of  the  copyright  in  any  work  and  the  defend- 
ant in  his  defence  alleges  that  he  was  not  aware  of  the 
cxistonro  of  llio  ropyriglit  in  the  work,  the  plaintiff  shall 
not  be  cnti(le(l  to  any  remedy  other  than  an  injunction  or 


APPENDIX  771 

interdict  in  respect  of  tlic  infringement  if  the  defendant 
proves  that  at  the  date  of  the  infringement  he  was  not 
aware  and  luid  no  reasonable  ground  for  suspecting  that 
copyriglit  subsisted  in  the  work. 

9.  {])  W'liere  the  (•onstructi(Hi  of  a  building  or  other 
structure  which  infringes  or  which,  if  completed,  would 
infringe  tlie  copyright  in  some  (jther  work  has  been 
commenced,  the  owner  of  the  copyright  shall  not  b(^ 
entitled  to  obtain  an  injunction  or  interdict  to  restrain 
the  construction  of  such  building  or  structure  or  to  order 
its  demolition. 

(2)  Such  of  the  other  provisions  of  this  Act  as  provide 
that  an  infringing  copy  of  a  work  shall  be  deemed  to  be 
the  property  of  the  owner  of  the  copyright,  or  as  impose 
summary  penalties,  shall  not  apply  in  any  case  to  which 
this  section  applies. 

H).  An  action  in  respect  of  infringement  of  copyright 
shall  not  be  commenced  after  the  expiration  of  three 
years  next  after  the  infringement. 

SUMMARY    KE.MEDIES 

11.  (1)  If  any  person  knowingly— 

(a)  makes  for  sale  or  hire  any  infringing  copy  of  a 

work  in  which  copyright  subsists;  or 
(6)  sell  or  lets  for  hire,  or  by  way  of  trade  exposes  or 

offers  for  sale  or  hire  any  infringing  copy  of  any 

such  work;  or 
(c)  distributes    infringing    cojiies    of    any    such    work 

either  for  the  purposes  of  trade  or  to  such  an 

extent  as  to  atlect  prejudicially  the  owner  of 

the  copyright;  or 


772  APPENDIX 

(d)  by  way  of  trade  exhibits  in  public  any  infringing 

copy  of  any  such  work;  or 

(e)  imports  for  sale  or  hire  into  the  United  Kingdom 

any  infringing  copy  of  any  such  work: 
he  shall  be  guilty  of  an  offence  under  this  Act  and  be 
liable  on  summary  conviction  to  a  fine  not  exceeding 
forty  shillings  for  every  copy  dealt  with  in  contraven- 
tion of  this  section,  but  not  exceeding  fifty  pounds  in 
respect  of  the  same  transaction;  or,  in  the  case  of  a  second 
or  subsequent  offence,  either  to  such  fine  or  to  imprison- 
ment with  or  without  hard  labor  for  a  term  not  exceeding 
two  months. 

(2)  If  any  person  knowingly  makes  or  has  in  his  posses- 
sion any  plate  for  the  purpose  of  making  infringing  copies 
of  any  work  in  which  copyright  subsists,  or  knowingly 
and  for  his  private  profit  causes  any  such  work  to  be 
performed  in  public  without  the  consent  of  the  owner  of 
the  copyright,  he  shall  be  guilty  of  an  offence  under  this 
Act,  and  be  liable  on  summary  conviction  to  a  fine  not 
exceeding  fifty  pounds,  or,  in  the  case  of  a  second  or 
subsequent  offence,  either  to  such  fine  or  to  imprison- 
ment with  or  without  hard  labor  for  a  term  not  exceeding 
two  months. 

(3)  The  court  before  which  any  such  proceedings  are 
taken  may,-  whether  the  alleged  offender  is  convicted  or 
not,  order  that  all  copies  of  the  work  or  all  plates  in  the 
possession  of  the  alleged  offender,  which  appear  to  it  to 
be  infringing  copies  or  plates  for  the  purpose  of  making 
infringing  copies,  be  destroyed  or  delivered  up  to  the 
owner  of  the  copyright  or  otherwise  dealt  with  as  the 
court  may  think  fit. 


APPENDIX  773 

(4)  Nothing  in  this  section  shall,  as  respects  musical 
works,  afTect  the  provisions  of  the  Musical  (Summary 
Proceedings)  Copyright  Act,  1902,  or  the  Musical  Copy- 
right Act,  lOOC). 

12.  Any  i)crs()n  aggrieved  l)y  a  summary  c(jn\-iction  of 
an  offence  under  the  foregoing  provisions  of  this  Act  may 
in  England  and  Ireland  appeal  to  a  court  of  quarter 
sessions  and  in  Scotland  under  and  in  terms  of  the.  Sum- 
mary Jurisdiction  (Scotland)  Acts. 

1.3.  The  provisions  of  this  Act  with  respect  to  summary 
remedies  shall  extend  only  to  the  United  Kingdom. 

IMPOKTATIOX    OF   COPIES 

14.  (1)  Copies  made  out  of  the  United  Kingdom  of  any 
work  in  which  copyright  subsists  which  if  made  in  the 
United  Kingdom  would  infringe  copyright,  and  as  to 
which  the  owner  of  the  coj)yright  gives  notice  in  writing 
by  himself  or  his  agent  to  the  Commissioners  of  Customs 
and  Excise,  that  he  is  desirous  that  such  copies  should 
not  be  imported  into  the  United  Kingdom,  shall  not  be 
so  imported,  and  shall,  subject  to  the  provisions  of  this 
section,  be  deemed  to  be  included  in  the  table  of  prohil^i- 
tions  and  restrictions  contained  in  section  forty-two  of 
the  Customs  Consolidation  Act,  187G,  and  that  section 
shall  apply  accordingly. 

(2)  Before  detaining  any  such  copies  or  taking  any 
further  proceedings  with  a  \ie\v  to  the  forfeiture  thereof 
under  the  law  relating  to  the  Customs,  the  Commissioners 
of  Customs  and  I'lxcise  may  retiuire  the  regulations  under 
this  section,  whether  as  to  information,  conditions,  or 


774  APPENDIX 

other  matters,  to  be  complied  with,  and  may  satisfy 
themselves  in  accordance  with  those  regulations  that  the 
copies  are  such  as  are  prohibited  by  this  section  to  be 
imported. 

(3)  The  Commissioners  of  Customs  and  Excise  may 
make  regulations,  either  general  or  special,  respecting  the 
detention  and  forfeiture  of  copies  the  importation  of 
which  is  prohibited  by  this  section,  and  the  conditions, 
if  any,  to  be  fulfilled  before  such  detention  and  forfeiture, 
and  may,  by  such  regulations,  determine  the  information, 
notices,  and  security  to  be  given,  and  the  evidence  requisite 
for  any  of  the  purposes  of  this  section,  and  the  mode 
of  verification  of  such  evidence. 

(4)  The  regulations  may  apply  to  copies  of  all  works 
the  importation  of  copies  of  which  is  prohibited  by  this 
section,  or  different  regulations  may  be  made  respecting 
different  classes  of  such  works. 

(5)  The  regulations  may  provide  for  the  informant 
reimbursing  the  Commissioners  of  Customs  and  Excise 
all  expenses  and  damages  incurred  in  respect  of  any  deten- 
tion made  on  his  information,  and  of  any  proceedings 
consequent  on  such  detention ;  and  may  provide  for  notices 
under  any  enactment  repealed  by  this  iVct  being  treated 
as  notices  given  under  this  section. 

(G)  The  foregoing  provisions  of  this  section  shall  have 
effect  as  if  they  w(>ro  part  of  the  Customs  Consolidation 
Act,  187G:  Provided  that,  notwithstaiiding  anytliing  in 
that  Act,  the  Isle  of  Man  shall  not  be  treated  as  part  of 
the  United  Kingdom  for  the  i)urposos  of  this  section. 

(7)  This  section  shall,  with  the  necessary  modifications, 
apply   to  the   importation   into  a   British   possession   to 


APPENDIX  775 

which  this  Act  extends  of  copies  of  works  made  out  of 
that  possession. 

DELIVERY    OF   BOOKS   TO    LIBRARIES 

15.  (1)  The  pubHsher  of  every  book  pubHshed  in  the 
United  Kingdom  shall,  within  one  month  after  the  i)ub- 
lication,  deliver,  at  his  own  expense,  a  copy  of  the  bocjk  to 
the  trustees  of  the  British  Museum,  who  shall  give  a 
written  receipt  for  it. 

(2)  He  shall  also,  if  wTitten  demand  is  made  before  the 
expiration  of  twelve  months  after  publication,  dehver 
within  one  month  after  receipt  of  that  wTitten  demand  or, 
if  the  demand  was  made  before  publication,  within  one 
month  after  publication,  to  some  dei)6t  in  London  nameil 
in  the  demand  a  copy  of  the  book  for,  or  in  accordance 
with  the  directions  of,  the  authority  having  the  control  of 
each  of  the  following  libraries,  namely:  the  Bodleian 
Library,  Oxford,  the  L'niversity  Library,  C'ambritige, 
the  Library  of  the  Faculty  of  Advocates  at  Edinburgh, 
and  the  Library  of  Trinity  College,  Dublin,  and  subject 
to  the  provisions  of  this  section  the  National  Library  of 
Wales.  In  the  case  of  an  encyclopiudia,  newspaper, 
review,  magazine,  or  work  published  in  a  series  of  num- 
bers or  parts,  the  written  demand  may  incUule  all  numbers 
or  parts  of  the  work  which  may  be  subsequently  pub- 
lished. 

(3)  The  copy  delivered  to  the  trustees  of  the  British 
Museum  shall  be  a  copy  of  the  whole  book  with  all  maps 
and  illustrations  l)el()nging  thereto,  finished  and  colored 
in  the  same  manner  as  the  best  copies  of  the  book  are 


776  APPENDIX 

published,  and  shall  be  bound,  sewed,  or  stitched  together, 
and  on  the  best  paper  on  which  the  book  is  printed. 

(4)  The  copy  delivered  for  the  other  authorities  men- 
tioned in  this  section  shall  be  on  the  paper  on  which  the 
largest  number  of  copies  of  the  book  is  printed  for  sale, 
and  shall  be  in  the  like  condition  as  the  books  prepared 
for  sale. 

(5)  The  books  of  which  copies  are  to  be  delivered  to 
the  National  Library  of  Wales  shall  not  include  books  of 
such  classes  as  may  be  specified  in  regulations  to  be  made 
by  the  Board  of  Trade. 

(6)  If  a  publisher  fails  to  comply  with  this  section,  he 
shall  be  liable  on  summary  conviction  to  a  fine  not  ex- 
ceeding five  pounds  and  the  value  of  the  book,  and  the 
fine  shall  be  paid  to  the  trustees  or  authority  to  whom 
the  book  ought  to  have  been  delivered. 

(7)  For  the  purposes  of  this  section,  the  expression 
"book"  includes  every  part  or  division  of  a  book,  pam- 
phlet, sheet  of  letter-press,  sheet  of  music,  map,  plan, 
chart  or  table  separately  published,  but  shall  not  include 
any  second  or  subsequent  edition  of  a  book  unless  such 
edition  contains  additions  or  alterations  either  in  the 
letter-press  or  in  the  maps,  prints,  or  other  engravings 
belonging  thereto. 

SPECIAL    PROVISIONS   AS   TO   CERTAIN   WORKS 

IG.  (1)  In  the  case  of  a  work  of  joint  authorship, 
copyright  shall  subsist  during  the  life  of  the  author  who 
first  dies  and  for  a  term  of  fifty  years  after  his  death,  or 
during  the  life  of  the  author  who  dies  last,  whichever 
period  is  the  longer,  and  references  in  this  Act  to  the 


APPENDIX  777 

period  after  the  expiration  of  any  specified  number  of 
years  from  the  death  of  the  author  shall  be  construed  as 
references  to  the  period  after  the  expiration  of  the  like 
num})er  of  years  from  the  death  of  the  author  who  dies 
first  or  after  the  death  of  the  author  who  dies  last,  which- 
ever period  may  be  the  shorter,  and  in  the  provisions  of 
this  Act  with  respect  to  the  grant  of  compulsory  licenses 
a  reference  to  the  date  of  the  death  of  the  author  who 
dies  last  shall  be  substituted  for  the  reference  to  the  date 
of  the  death  of  the  author. 

(2)  Where,  in  the  case  of  a  work  of  joint  authorship, 
some  one  or  more  of  the  joint  authors  do  not  satisfy  the 
conditions  conferring  copyright  laid  down  by  this  Act, 
the  work  shall  be  treated  for  the  purposes  of  this  Act  as 
if  the  other  author  or  authors  had  been  the  sole  author 
or  authors  thereof: 

Provided  that  the  term  of  the  copjTight  shall  be  the 
same  as  it  would  have  been  if  all  the  authors  had  satisfied 
such  conditions  as  aforesaid. 

(3)  For  the  purposes  of  this  Act,  "a  work  of  joint 
authorshi])"  meaiiK  a  work  produced  by  the  collaboration 
of  two  or  more  authors  in  which  the  contribution  of  one 
author  is  not  distinct  from  the  contribution  of  the  other 
author  or  authors. 

(4)  Where  a  married  woman  and  her  husband  are 
joint  authors  of  a  work  the  interest  of  such  married 
woman  therein  shall  be  her  separate  property. 

17.  (1)  In  the  case  of  a  literary  dramatic  or  musical 
work,  or  an  engraving,  in  which  copyright  subsists  at  the 
date  of  the  death  of  the  author  or,  in  the  ctise  of  a  work  of 
joint  authorship,  at  or  immediately  before  the  date  of  the 


778  APPENDIX 

death  of  the  author  who  dies  last,  but  which  has  not  been 
pubUshed,  nor,  in  the  case  of  a  dramatic  or  musical  work, 
been  performed  in  public,  nor,  in  the  case  of  a  lecture, 
been  delivered  in  public,  before  that  date,  copjnright  shall 
subsist  till  publication,  or  performance  or  dehvery  in 
public,  whichever  may  first  happen,  and  for  a  term  of 
fifty  years  thereafter,  and  the  pro\dso  to  section  three  of 
this  Act  shall,  in  the  case  of  such  a  work,  apply  as  if  the 
author  had  died  at  the  date  of  such  publication  or  per- 
formance or  delivery  in  public  as  aforesaid. 

(2)  The  ownership  of  an  author's  manuscript  after  his 
death,  where  such  ownership  has  been  acquired  under  a 
testamentary  disposition  made  by  the  author  and  the 
manuscript  is  of  a  work  which  has  not  been  published 
nor  performed  in  public  nor  delivered  in  public,  shall  be 
prima  facie  proof  of  the  copyright  being  with  the  owner 
of  the  manuscript. 

18.  Without  prejudice  to  any  rights  or  privileges  of 
the  Crown,  where  any  work  has,  whether  before  or  after 
the  commencement  of  this  Act,  been  prepared  or  published 
by  or  under  the  direction  or  control  of  His  Majesty  or 
any  Government  department,  the  copyright  in  the  work 
shall,  subject  to  any  agreement  with  the  author,  belong 
to  His  Majesty,  and  in  such  case  shall  continue  for  a 
period  of  fifty  years  from  the  date  of  the  first  publication 
of  the  work. 

19.  (1)  Copyright  shall  subsist  in  records,  perforated 
rolls,  and  other  contrivances  by  means  of  which  sounds 
may  be  mechanically  reproduced,  in  like  manner  as  if 
such  contrivances  were  music^al  works,  but  the  term  of 
copyright  shall  be  fifty  years  from  the  making  of  the 


APPENDIX  779 

original  plato  from  wliich  the  contrivance  was  directly  or 
indirect  1}'  derivetl,  and  the  person  who  was  the  owner  of 
such  original  plate  at  the  time  when  such  plate  was  made 
shall  bo  deemed  to  he  the  author  of  the  work,  and,  where 
such  owner  is  a  body  corporate,  the  body  corporate  shall 
be  deemed  for  the  purposes  of  this  Act  to  reside  within  the 
parts  of  His  Majesty's  dominions  to  which  this  Act 
extends  if  it  has  established  a  place  of  business  within 
such  parts. 

(2)  It  shall  not  be  deemed  to  be  an  infringement  of 
copyright  in  any  musical  work  for  any  person  to  make 
within  the  parts  of  His  ^Majesty's  dominions  to  which  this 
Act  extends  records,  perforated  rolls,  or  other  contriv- 
ances by  means  of  which  the  work  may  be  mechanically 
performed,  if  such  person  proves — 

(a)  that  such  contrix'ances  have  previously  been  made 
by,  or  with  the  consent  or  acquiescence  of,  the 
owner  of  the  copyright  in  the  work;  and 
{h)  that  he  has  given  the  j)rcscribed  notice  of  his  inten- 
tion to  make  the  contrivances,  and  has  paid  in 
the  prescribetl  manner  to,  or  for  the  benefit  of, 
the  owner  of  the  c()i)yright  in  the  work  royalties 
in  respect  of  all  such  contrivances  soKl  by  him, 
calculated  at  the  rate  hereinafter  mentioned : 
Provided  that — 

(i)  nothing  in  this  provision  shall  authorize  any  altera- 
tions in,  or  omissions  from,  the  wt)rk  reproduced, 
unless  contrivances  reproducing  the  work  subject 
to  similar  alterations  and  omissions  have  been 
previously  made  by,  or  with  the  consent  or 
acquiescence  of,  the  owner  of  the  copyright,  or 


780  APPENDIX 

unless  such  alterations  or  omissions  are  reasonably 
necessary  for  the  adaptation  of  the  work  to  the 
contrivances  in  question;  and 
(ii)  for  the  purposes  of  this  pro\dsion,  a  musical  work 
shall  be  deemed  to  include  any  words  so  closely 
associated  therewith  as  to  form  part  of  the  same 
work,  but  shall  not  be  deemed  to  include  a  con- 
trivance  by   means   of  which   sounds  may   be 
mechanically  reproduced. 
(3)  The  rate  at  which  such  royalties  as  aforesaid  are 
to  be  calculated  shall — 

(a)  in  the  case  of  contrivances  sold  within  two  years 

after   the   commencement   of   this  Act   by   the 

person  making  the  same,  be  two  and  one-half 

per  cent. ;  and 

(6)  in    the    case    of    contrivances    sold    as    aforesaid 

after   the   expu-ation    of   that   period,   five  per 

cent. 

on  the  ordinary  retail  selling  price  of  the  contrivance 

calculated  in  the  prescribed  manner,  so  however  that  the 

royalty  payable  in  respect  of  a  contrivance  shall,  in  no 

case,  be  less  than  a  half-penny  for  each  separate  musical 

work  in  which  copyright  subsists  reproduced  thereon, 

and,  where  the  royalty  calculated  as  aforesaid  includes  a 

fraction  of  a  farthing,  such  fraction  shall  be  reckoned  as 

a  farthing: 

Provided  that,  if,  at  any  time  after  the  expiration  of 
seven  years  from  the  commencement  of  this  Act,  it 
appears  to  the  lioard  of  Trade  that  such  rate  as  aforesaid 
is  no  longer  o(iuit:il)le,  the  Hoard  of  Trade  may,  after 
holding  a  public  in(iuiry,  make  an  order  either  decreasing 


APPENDIX  781 

or  increasing  that  rate  to  such  extent  as  under  the  cir- 
cumstances may  seem  just,  but  any  order  so  made  shall 
be  provisional  only  and  shall  not  have  any  effect  unless 
and  until  confu'med  by  Parliament;  but,  where  an  order 
revising  the  rate  has  been  so  made  and  confirmed,  no 
further  revision  shall  be  made  before  the  expiration  of 
fourteen  years  from  the  date  of  the  last  revision. 

(4)  If  any  such  contrivance  is  made  reproducing  two 
or  more  different  works  in  which  cop>Tight  subsists  and 
the  owners  of  the  copyright  therein  are  different  persons, 
the  sums  payable  by  way  of  royalties  under  this  section 
shall  be  apportioned  amongst  the  several  owners  of  the 
copyright  in  such  proportions  as,  failing  agreement,  may 
be  determined  by  arbitration. 

(5)  When  any  such  contrivances  by  means  of  which  a 
musical  work  may  be  mechanically  performed  have  been 
made,  then,  for  the  purposes  of  this  section,  the  owner  of 
the  copyright  in  the  work  shall,  in  relation  to  any  person 
who  makes  the  prescribed  inquiries,  be  deemed  to  have 
given  his  consent  to  the  making  of  such  contrivances  if 
he  fails  to  reply  to  such  inquiries  within  the  prescribed 
time. 

(G)  For  the  purposes  of  this  section,  the  Board  of  Trade 
may  make  regulations  prescribing  anything  which  under 
this  section  is  to  be  prescrilKnl,  and  prescril)ing  the  mode 
in  which  notices  are  to  be  given  and  the  particuhu's  to  be 
given  in  such  notices,  and  the  mode,  time,  and  frequency 
of  the  payment  of  royalties,  and  any  such  regulations 
may,  if  the  Hoard  think  fit,  include  regulations  recjuiring 
payment  in  advance  or  otherwise  securing  the  i)ayment 
of  royalties. 


782  APPENDIX 

(7)  In  the  case  of  musical  works  published  before  the 
commencement  of  this  Act,  the  foregoing  provisions  shall 
have  effect,  subject  to  the  following  modifications  and 
additions : 

(a)  The  conditions  as  to  the  previous  making  by,  or 
with  the  consent  or  acquiescence  of,  the  owner  of 
the  copyright  in  the  work,  and  the  restrictions 
as  to  alterations  in  or  omissions  from  the  work, 
shall  not  apply: 

(6)  The  rate  of  two  and  one-half  per  cent,  shall  be 
substituted  for  the  rate  of  five  per  cent,  as  the 
rate  at  which  royalties  are  to  be  calculated, 
but  no  royalties  shall  be  payable  in  respect  of 
contrivances  sold  before  the  first  day  of  July, 
nineteen  hundred  and  thirteen,  if  contrivances 
reproducing  the  same  work  had  been  lawfully 
made,  or  placed  on  sale,  within  the  parts  of  His 
Majesty's  dominions  to  which  this  Act  extends 
before  the  first  day  of  July,  nineteen  hundred 
and  ten: 

(c)  Notwithstanding  any  assignment  made  before  the 
passing  of  this  Act  of  the  copyright  in  a  musical 
work,  any  rights  conferred  l)y  this  Act  in  re- 
spect of  the  making,  or  authorizing  the  mak- 
ing, of  contrivances  by  means  of  which  the 
work  may  })e  mechanically  performed  shall  l)c- 
long  to  the  author  or  his  legal  personal  repre- 
sentatives and  not  to  the  assignee,  and  the  roy- 
alties aforesaid  shall  be  paya})le  to,  and  for  the 
benefit  of,  the  author  of  the  work  or  his  legal 
personal  representatives: 


APPENDIX  783 

(d)  The  saving  contained  in   this  Act  of  the  rights 
and  interests  arising  from,  or  in  connexion  with, 
action  taken  l)ef<)re  the  coniniencenicnt   of  this 
Act  shall  not  be  construed  as  authorizing  any 
person   who  has  made  contrivances  by  means 
of  which  tlie  work  may  be  mechanically  per- 
formed to  sell  any  such  contrivances,  whether 
made  before  or  after  the  j^assing  of  this  Act, 
except  on  the  terms  and  subject  to  the  condi- 
tions laid  down  in  this  section: 
(c)  TMiere  the  work  is  a  work  on  which  cojjvright  is 
conferred  by  an  Order  in  Council  relating  to  a 
foreign  country,  the  copyright  so  conferred  shall 
not,  except  to  such  extent  as  may  be  provided  by 
the  Order,   include  any  rights  with  respect  to 
the  makhig  of  records,  perforated  rolls,  or  other 
contrivances  by  means  of  which  the  work  may 
be  mechanically  performed. 
(8)  Notwithstanding  anything  in   this  Act,   where  a 
record,  perforated  roll,  or  other  contrivance  by  means 
of  which  sounds  may  be  mechanically  rei)roduced  has 
been  made  before  the  conmiencement  of  this  Act,'  copy- 
right shall,  as  from  the  commencement  of  this  Act,  sub- 
sist therein  in  like  manner  and  for  the  like  term  as  if 
this  Act  had  been  in  force  at  the  date  of  the  making  of  the 
original  i)late  from  which  the  contrivance  was  directly 
or  indirectly  derived: 
Provided  that — 

(i)  the  person  who,  at  the  commencement  of  this 
Act,  is  the  owner  of  such  original  plate  shall  be 
the  first  owner  of  such  copyright ;  and 


784  APPENDIX 

(ii)  nothing  in  this  provision  shall  be  construed  as 
conferring  copyright  in  any  such  contrivance  if 
the  making  thereof  would  have  infringed  copy- 
right in  some  other  contrivance,  if  this  provision 
had  been  in  force  at  the  time  of  the  making  of 
the  first-mentioned  contrivance. 

20.  Notwithstanding  anything  in  this  Act,  it  shall 
not  be  an  infringement  of  copyright  in  an  address  of  a 
political  nature  delivered  at  a  public  meeting  to  publish 
a  report  thereof  in  a  newspaper. 

21.  The  term  for  which  cop^Tight  shall  subsist  in 
photographs  shall  be  fifty  years  from  the  making  of  the 
original  negative  from  which  the  photograph  was  directly 
or  indirectly  derived,  and  the  person  who  was  owner  of 
such  negative  at  the  time  when  such  negative  was  made 
shall  be  deemed  to  be  the  author  of  the  work,  and,  where 
such  owner  is  a  body  corporate,  the  body  corporate  shall 
be  deemed  for  the  purposes  of  this  Act  to  reside  within 
the  parts  of  His  Majesty's  dominions  to  which  this  Act 
extends  if  it  has  established  a  place  of  business  within 
such  parts. 

22.  (1)  This  Act  shall  not  apply  to  designs  capable  of 
being  registered  under  the  Patents  and  Designs  Act,  1907, 
except  designs  which,  though  capable  of  being  so  regis- 
tered, are  not  used  or  intended  to  be  used  as  models  or 
patterns  to  be  multiplied  by  any  industrial  process. 

(2)  General  rules  under  section  eighty-six  of  the  Pat- 
ents and  Designs  Act,  1907,  may  be  made  for  determin- 
ing the  conditions  under  which  a  design  shall  be  dronied 
to  be  used  for  such  purposes  as  aforesaid. 

23.  If  it  appears  to  His  Majesty  that  a  foreign  country 


APPENDIX  785 

does  not  give,  or  has  not  undertaken  to  give,  adetjuate 
protection  to  the  works  of  British  authors,  it  shall  be 
lawful  for  His  Majesty  by  Order  in  Council  to  direct  that 
such  of  the  provisions  of  this  Act  us  confer  co])>Tight  on 
works  first  published  within  the  parts  of  His  Majesty's 
dominions  to  which  this  Act  extends,  shall  not  apply  to 
works  published  after  the  date  si)ecified  in  the  Order,  the 
authors  whereof  are  subjects  or  citizens  of  such  foreign 
country-,  and  are  not  resident  in  His  ^Majesty's  dominions, 
and  thereupon  those  provisions  shall  not  apply  to  such 
works. 

24.  (1)  WTiere  any  person  is  immediately  before  the 
commencement  of  this  Act  entitled  to  any  such  right  in 
any  work  as  is  specified  in  the  first  column  of  the  First 
Schedule  to  this  Act,  or  to  any  interest  in  such  a  right, 
he  shall,  as  from  that  date,  be  entitled  to  the  substi- 
tuted right  set  forth  in  the  second  column  of  that  schedule, 
or  to  the  same  interest  in  such  a  substituted  right,  and  to 
no  other  right  or  interest,  and  such  sul)stituted  right  shall 
subsist  for  the  term  for  which  it  would  have  subsisted 
if  this  Act  had  been  in  force  at  the  date  when  the  work 
was  made  and  the  work  had  been  one  entitled  to  copy- 
right thereunder: 
Provided  that — 

(a)  if  the  author  of  any  work  in  which  any  such  right 
as  is  specified  in  the  first  column  of  the  First 
Schedule  to  this  Act  subsists  at  the  commence- 
ment of  this  Act  has,  before  that  date,  assigned 
the  right  or  granted  any  interest  therein  for  the 
whole  term  of  the  right,  then  at  the  date  when, 
but  for  the  passing  of  this  Act,  the  right  would 


786  APPENDIX 

have  expired  the  substituted  right  conferred  by 
this  section  shall,  in  the  absence  of  express 
agreement,  pass  to  the  author  of  the  work,  and 
any  interest  therein  created  before  the  com- 
mencement of  this  Act  and  then  subsisting  shall 
determine;  but  the  person  who  immediately 
before  the  date  at  which  the  right  would  so  have 
expired  was  the  owner  of  the  right  or  interest 
shall  be  entitled  at  his  option  either — 

(i)  on  giving  such  notice  as  hereinafter 
mentioned,  to  an  assignment  of  the  right  or 
the  grant  of  a  similar  interest  therein  for  the 
remainder  of  the  term  of  the  right  for  such 
consideration  as,  failing  agreement,  may  be 
determined  by  arbitration;  or 

(ii)  without  any  such  assignment  or  grant, 
to  continue  to  reproduce  or  perform  the  work 
in  like  manner  as  theretofore  subject  to  the 
payment,  if  demanded  by  the  author  within 
three  years  after  the  date  at  which  the  right 
would  have  so  expired,  of  such  royalties  to 
the  author  as,  failing  agreement,  may  be  de- 
termined by  arbitration,  or,  where  the  work 
is  incorporated  in  a  collective  work  and  the 
owner  of  the  right  or  interest  is  the  propri- 
etor of  that  collective  work,  without  any 
such  payment; 

The  notice  above  referred  to  must  be  given 
not  more  than  one  year  nor  less  than  six  months 
before  the  date  at  which  the  right  would  have 
so  expired,  and  must  be  sent  by  registered  post 


APPENDIX  787 

to  the  author,  or,  if  he  cannot  with  reasonable 
diligence  be  found,  advertised  in  the  London 
Gazette  and  in  two  London  newspapers: 
(6)  where  any  person  has,  l)efore  the  twenty-sixth  day 
of  July,  nineteen  hundred  and  ten,  taken  any 
action  whereby  he  has  incurred  any  expenditure 
or  lial)ility  in  connexion  with  the  reproduction 
or  performance  of  any  work  in  a  manner  which 
at  the  time  was  lawful,  or  for  the  purpose  of  or 
with  a  view  to  the  reproduction  or  performance 
of  a  work  at  a  time  when  such  reproduction  or 
performance  would,  but  for  the  passing  of  this 
Act,  have  been  lawful,  nothing  in  this  section 
shall  diminish  or  prejudice  any  rights  or  interest 
arising  from  or  in  connexion  with  such  action 
which  are  subsisting  and  valuable  at  the  said 
date,  unless  the  person  who  l)y  virtue  of  this 
section  becomes  entitled  to  restrain  such  repro- 
duction or  performance  agrees  to  pay  such  com- 
pensation as,  failing  agreement,  may  be  deter- 
mined by  arbitration. 

(2)  For  the  jnirposes  of  this  section,  the  expression 
"author"  includes  the  legal  personal  representatives  of 
a  deceased  author. 

(3)  Subject  to  the  provisions  of  section  nineteen  sub- 
sections (7)  and  fS)  and  of  section  thirty-three  of  this 
Act,  copyright  shall  not  subsist  in  any  work  made  before 
the  commencement  of  this  Act,  otherwise  than  under, 
and  in  accordance  with,  the  provisions  of  this  sec- 
tion. 


788  APPENDIX 


APPLICATION   TO   BRITISH   POSSESSIONS 

25.  (1)  This  Act,  except  such  of  the  provisions  thereof 
as  are  expressly  restricted  to  the  United  Kingdom,  shall 
extend  throughout  His  Majesty's  dominions:  Provided 
that  it  shall  not  extend  to  a  self-governing  dominion, 
unless  declared  by  the  Legislature  of  that  dominion  to  be 
in  force  therein  either  without  any  modifications  or  addi- 
tions, or  with  such  modifications  and  additions  relating 
exclusively  to  procedure  and  remedies,  or  necessary  to 
adapt  this  Act  to  the  circumstances  of  the  dominion,  as 
may  be  enacted  by  such  Legislature. 

(2)  If  the  Secretary  of  State  certifies  by  notice  pub- 
lished in  the  London  Gazette  that  any  self-governing 
dominion  has  passed  legislation  under  which  works,  the 
authors  whereof  were  at  the  date  of  the  making  of  the 
works  British  subjects  resident  elsewhere  than  in  the 
dominion  or  (not  being  British  subjects)  were  resident  in 
the  parts  of  His  Majesty's  dominions  to  which  this  Act 
extends,  enjoy  within  the  dominion  rights  substantially 
identical  with  those  conferred  by  this  Act,  then,  whilst 
such  legislation  continues  in  force,  the  dominion  shall, 
for  the  purposes  of  the  rights  confon-od  by  this  Act,  be 
treated  as  if  it  were  a  dominion  to  which  this  Act  extends; 
and  it  shall  be  lawful  for  the  Secretary  of  State  to  give 
such  a  certificate  as  aforesaid,  notwithstanding  that  the 
remedies  for  enforcing  the  rights,  or  tlie  restrictions  on 
the  importation  of  copies  of  works,  manufac^tured  in  a 
foreign  country,  under  the  law  of  the  dominion,  differ 
from  those  under  t  liis  Act. 

20.  (1)  The  Legislature  of  any  self-governing  dominion 


APPENDIX  789 

may,  at  any  time,  repeal  all  or  any  of  the  enactments 
relating  to  copyright  passed  by  Parliament  (including  this 
Act)  so  far  as  they  are  operative  within  that  dominion: 
Provided  that  no  such  repeal  shall  prejudicially  affect  any 
legal  rights  existing  at  the  time  of  the  repeal,  and  that, 
on  this  Act  or  any  part  thereof  being  so  repealed  by  the 
Legislature  of  a  self-governing  dominion,  that  domin- 
ion shall  cease  to  be  a  dominion  to  which  this  act 
extends. 

(2)  In  any  self-governing  dominion  to  which  this  Act 
does  not  extend,  the  enactments  repealed  by  this  Act  shall, 
so  far  as  they  are  operative  in  that  donnnion,  continue  in 
force  until  repealed  by  the  Legislature  of  that  dominion. 

(3)  WTiere  his  Majesty  in  Council  is  satisfied  that  the 
law  of  a  self-governing  dominion  to  which  this  Act  does 
not  extend  ])rovides  adequate  i)rotection  within  the 
dominion  for  the  works  (whether  published  or  unpub- 
lished) of  authors  who  at  the  time  of  the  making  of  the 
work  were  British  subjects  resident  elsewhere  than  in 
that  donnnion,  His  Majesty  in  Council  may,  for  the  pur- 
pose of  giving  reciprocal  protection,  direct  that  this 
Act,  excei)t  such  j^arts  (if  any)  thereof  as  may  be  specified 
in  the  Order,  and  subject  to  any  conditions  contained 
therein,  shall,  within  the  parts  of  His  Majesty's  dominions 
to  which  this  Act  extends,  api)ly  to  works  the  authors 
whereof  were,  at  the  time  of  the  making  of  the  work, 
resident  within  the  first-mentioned  dominion,  and  to 
works  first  published  in  that  dominion;  but,  save  as 
provided  by  such  an  Order,  works  the  authors  whereof 
were  resident  in  a  dominion  to  which  this  Act  does  not 
extend  shall  not,  whether  they  are  British  subjects  or 


790         *  APPENDIX 

not,  be  entitled  to  any  protection  under  this  Act  except 
such  protection  as  is  by  this  Act  conferred  on  works  first 
published  within  the  parts  of  His  Majesty's  dominions  to 
which  this  Act  extends : 

Provided  that  no  such  Order  shall  confer  any  rights 
within  a  self-governing  dominion,  but  the  Governor  in 
Council  of  any  self-governing  dominion  to  which  this  Act 
extends,  may,  by  Order,  confer  within  that  dominion 
the  like  rights  as  His  Majesty  in  Council  is,  under  the 
foregoing  provisions  of  this  subsection,  authorized  to 
confer  within  other  parts  of  His  Majesty's  dominions. 

For  the  purposes  of  this  subsection,  the  expression 
''a  dominion  to  which  this  Act  extends"  includes  a 
dominion  which  is  for  the  purposes  of  this  Act  to  be 
treated  as  if  it  were  a  dominion  to  which  this  Act 
extends. 

27.  The  Legislature  of  any  British  possession  to  which 
this  Act  extends  may  modify  or  add  to  any  of  the  pro- 
visions of  this  Act  in  its  application  to  the  possession, 
but,  except  so  far  as  such  modifications  and  additions 
relate  to  procedure  and  remedies,  they  shall  apply  only 
to  works  the  authors  whereof  were,  at  the  time  of  the 
making  of  the  work,  resident  in  the  possession,  and  to 
works  first  i)ubHshed  in  the  possession. 

28.  His  Majesty  may,  by  Order  in  Council,  extend  this 
Act'to  any  territories  under  his  protection  and  to  Cyprus, 
and,  on  the  making  of  any  such  Order,  this  Act  shall, 
subject  to  the  provisions  of  the  Order,  have  effect  as  if 
the  territories  to  which  it  applies  or  Cyprus  were  i)art  of 
His  Majesty's  dominions  to  which  this  Act  extends. 


APPENDIX  791 

Part  II 

INTERNATIONAL  COPYRIGHT 

29.  (1)  His  Majesty  may,  by  Order  in  Council,  direct 
that  this  Act  (except  such  parts,  if  any,  thereof  as  may 
be  specified  in  the  Order)  shall  apply — 

(a)  to  works  first  published  in  a  foreign  country  to 

which  the  Order  relates,  in  like  manner  as  if  they 
were  first  published  within  the  parts  of  His 
Majesty's  dominions  to  which  this  Act  extends; 

(b)  to  Hterary,  dramatic,  musical,  and  artistic  works, 

or  any  class  thereof,  the  authors  whereof  were  at 
the  time  of  the  making  of  the  work  subjects  or 
citizens  of  a  foreign  country  to  which  the  order 
relates,  in  like  manner  as  if  the  authors  were 
British  subjects; 

(c)  in  respect  of  residence  in  a  foreign  country  to  which 

the  Order  relates,  in  like  manner  as  if  such  res- 
idence were  residence  in  the  part  of  His  Majesty's 
dominions  to  which  this  Act  extends; 
and  thereupon,  subject  to  the  provisions  of  this  Part  of 
this  Act  and  of  the  Order,  this  Act  shall  apply  accord- 
ingly: 

Provided  that — 

(i)  before  making  an  Order  in  Council  under  this  sec- 
tion in  resi)ect  of  any  foreign  country  (other  than 
a  country  with  which  His  Majesty  has  entered 
into  a  convention  relating  to  copyright),  Plis 
Majesty  shall  be  satisfied  that  that  foreign  coun- 
try has  made,  or  has  undertaken  to  make,  such 


792  APPENDIX 

provisions,  if  any,  as  it  appears  to  His  Majesty- 
expedient  to  require  for  the  protection  of  works 
entitled   to   copyright   under   the  provisions   of 
Part  I.  of  this  Act; 
(ii)  the  Order  in  Council  may  provide  that  the  term  of 
copyright  within  such  parts  of  His  Majesty's 
dominions  as  aforesaid  shall  not  exceed  that  con- 
ferred by  the  law  of  the  country  to  which  the 
Order  relates; 
(iii)  the  provisions  of  this  Act  as  to  the  delivery  of 
copies  of  books  shall  not  apply  to  works  first 
published  in  such  country,  except  so  far  as  is 
provided  by  the  Order; 
(iv)  the  Order  in  Council  may  provide  that  the  enjoy- 
ment of  the  rights  conferred  by  this  Act  shall 
be  subject  to  the  accomplishment  of  such  con- 
ditions and  formalities  (if  any)  as  may  be  pre- 
scribed by  the  Order; 
(v)  in  applying  the  provision  of  this  Act  as  to  owner- 
ship of  copyright,  the  Order  in  Council  may  make 
such  modifications  as  appear  necessary  having 
regard  to  the  law  of  the  foreign  country; 
(vi)  in  applying  the  provisions  of  this  Act  as  to  existing 
works,   the  Order  in  Council  may  make  such 
modifications  as  appear  necessary,  and  may  pro- 
vide that  nothing  in  those  provisions  as  so  ap- 
phed  shall  be  construed  as  reviving  any  right  of 
preventing  the  production  or  importation  of  any 
translation   in   any   case  where   the  right   has 
ceased  l)y  virtue  of  section  five  of  the  Interna- 
tional Copyright  Act,  188G. 


APPENDIX  703 

(2)  An  Order  in  Council  under  tliis  .section  may  extend 
to  all  the  several  countries  named  or  described  therein. 

30.  (1)  An  Order  in  Council  under  this  Part  of  this  Act 
shall  apply  to  all  His  Majesty's  dominions  to  which  this 
Act  extends  excej)t  self-governing  dominions  and  any 
other  possession  specified  in  the  order  witli  respect  to 
wiiich  it  appears  to  His  Majesty  expedient  that  the  Order 
should  not  apply. 

(2)  The  Governor  in  Council  of  an}'  self-governing 
dominion  to  which  this  Act  extends  may,  as  respects  that 
dominion,  make  the  like  orders  as  under  this  Part  of  this 
Act  His  Majesty  in  Council  is  authorized  to  make  with 
respect  to  His  Majesty's  dominions  other  than  self-govern- 
ing dominions,  and  the  provisions  of  this  Part  of  this  Act 
.shall,  with  the  necessary  modifications,  apply  accordingly. 

(3)  Where  it  appears  to  His  ]\lajesty  expedient  to 
except  from  the  provisions  of  any  order  any  part  of  his 
dominions  not  being  a  self-governing  dominion,  it  shall 
be  lawful  forilis  Majesty  by  the  same  or  any  other  Order 
in  Council  to  declare  that  such  order  and  this  Part  of  this 
Act  shall  not,  and  the  same  .shall  not,  apply  to  .such  part, 
except  so  far  as  is  necessary  for  preventing  any  prejudice 
to  any  rights  acquired  previously  to  the  date  of  such  Order. 

Part  HI 
SUPPLEMENTAL  PROVISIONS 

3L  No  person  shall  be  entitled  to  cop>Tight  or  any 

similar  right  in  any  litoran*',  dramatic,  musical,  or  artistic 
work,  wJH'tluM'  ])ul)lislu'd  or  uni)ul)lished,  otherwise  than 
under  and  in  accordance  with  the  provisions  of  this  Act, 


794  APPENDIX 

or  of  any  other  statutory  enactment  for  the  time  being  in 
force,  but  nothing  in  this  section  shall  be  construed  as  ab- 
rogating any  right  or  jurisdiction  to  restrain  a  breach  of 
trust  or  confidence. 

32.  (1)  His  Majesty  in  Council  may  make  Orders  for 
altering,  revoking,  or  varying  any  Order  in  Council  made 
under  this  Act,  or  under  any  enactments  repealed  by  this 
Act,  but  any  Order  made  under  this  section  shall  not 
affect  prejudicially  any  rights  or  interests  acquired  or 
accrued  at  the  date  when  the  Order  comes  into  operation, 
and  shall  provide  for  the  protection  of  such  rights  and 
interests. 

(2)  Every  Order  in  Council  made  under  this  Act  shall 
be  pubhshed  in  the  London  Gazette  and  shall  be  laid 
before  both  Houses  of  Parliament  as  soon  as  may  be 
after  it  is  made,  and  shall  have  effect  as  if  enacted  in  this 
Act. 

33.  Nothing  in  this  act  shall  deprive  any  of  the  univer- 
sities and  colleges  mentioned  in  the  Cop>Tight  Act,  1775, 
of  any  copyright  they  already  possess  under  that  Act, 
but  the  remedies  and  penalties  for  mfringement  of  any 
such  copyright  shall  be  imder  this  Act  and  not  under  that 
Act. 

34.  There  shall  continue  to  be  charged  on,  and  paid  out 
of,  the  Consolidated  Fund  of  the  United  Kingdom  such 
annual  compensation  as  was  immediately  before  the 
conimencenu'nt  of  this  Act  payaljle  in  pursuance  of  any 
Act  as  compensation  to  a  library  for  the  loss  of  the  right 
to  receive  gratuitous  copies  of  books: 

Provided  that  this  compensation  shall  not  be  j^aid  to  a 
library  in  any  year,  unless  the  Treasury  are  satisfied  that 


APPENDIX  795 

the  compensation  for  the  previous  year  has  Ixjen  applied 
in  the  purchase  of  books  for  the  use  of  and  to  be  preserved 
in  the  Hl^rary. 

35.  (1)  In  this  Act,  unless  the  context  otherwise 
recjuires — 

"Literary  work"  includes  maps,  charts,  plans,  tables, 
and  compilations; 

"Dramatic  work"  includes  any  piece  for  recitation, 
choreographic  work  or  entertainment  in  dumb 
show,  the  scenic  arrangement  or  acting  fonn  of 
which  is  fixed  in  writing  or  otherwise,  and  any 
cinematogi'aph  production  where  the  arrangement 
or  acting  form  or  the  combination  of  incidents 
represented  give  the  work  an  original  character; 

".Vi-tistic  work"  includes  works  of  painting,  drawing, 
sculpture  and  artistic  craftsmanship,  and  archi- 
tectural works  of  art  and  engravings  and  i)hoto- 
graphs; 

"Work  of  sculpture"  includes  casts  and  models; 

"iVrchitectural  work  of  art"  means  any  building  or 
structure  having  an  artistic  character  or  design, 
in  respect  of  such  character  or  design,  or  any 
model  for  such  building  or  structure,  provided 
that  the  protection  afforded  by  this  Act  shall  be 
confined  to  the  artistic  character  and  design,  and 
shall  not  extend  to  processes  or  methods  of  con- 
struction; 

"Engravings"  include  etchings,  hthographs,  wood- 
cuts, jirints,  and  other  similar  works,  not  being 
])h()tograi)hs; 

"Photograph"     includes    photo-lithograph    and    any 


796  APPENDIX 

work  produced  by  any  process  analogous  to  pho- 
tography; 

"Cinematograph"  includes  any  work  produced  by 
any  process  analogous  to  cinematography; 

"Collective  work"  means — 

(a)  an   encyclopaedia,    dictionary,    year   book,    or 

similar  work; 
(6)  a    newspaper,    review,    magazine,    or    similar 

periodical;  and 
(c)  any  work  written  in  distinct  parts  by  different 
authors,  or  in  which  works  or  parts  of  works 
of  different  authors  are  incorporated; 

"Infringing,"  when  applied  to  a  copy  of  a  work  in 
which  copyright  subsists,  means  any  copy,  includ- 
ing any  colorable  imitation,  made,  or  imported 
in   contravention   of   the   provisions   of   this   Act; 

"Performance"  means  any  acoustic  representation 
of  a  work  and  any  visual  representation  of  any 
dramatic  action  in  a  work,  including  such  a  repre- 
sentation made  by  means  of  any  mechanical  in- 
strument; 

"Delivery,"  in  relation  to  a  lecture,  includes  delivery 
by  means  of  any  mechanical  instrument; 

"Plate"  includes  any  stereotype  or  other  plate,  stone, 
block,  mould,  matrix,  transfer,  or  negative  used 
or  intended  to  be  used  for  printing  or  reproducing 
copies  of  any  work,  and  any  matrix  or  other  ap- 
pliance by  which  records,  perforated  rolls  or  other 
contrivances  for  the  acoustic  representation  of 
the  work  are  or  are  intended  to  b(^  riuide; 

"Lecture"  includes  address,  speech,  and  sermon; 


APPENDIX  797 

"Self-govemiiip;  dominion "  means  the  Dominion  of 
Canada,  the  Commonwealth  of  Australia,  the 
Dominion  of  Now  Zealand,  the  Union  of  South 
Africa,  and  Newfoundland. 

(2)  For  the  purjjoses  of  this  Act  (other  than  those 
relating  to  infringements  of  copyright),  a  work  shall  not 
be  deemed  to  I)e  published  or  performed  in  ])ublif',  and 
a  lecture  shall  not  be  deemed  to  be  delivered  in  public, 
if  ])ublished,  performed  in  public,  or  dehvered  in  pubUc, 
without  the  consent  or  acquiescence  of  the  author,  his 
executors,  administrators  or  assigns. 

(3)  For  the  purposes  of  this  Act,  a  work  shall  be  deemed 
to  be  first  published  witliin  the  parts  of  His  Majesty's 
dominions  to  which  this  Act  extends,  notwithstanding  that 
it  has  been  published  simultaneously  in  some  other 
place,  unless  the  publication  in  such  parts  of  His  Majesty's 
dominions  as  aforesaid  is  colorable  only  and  is  not  in- 
tended to  satisfy  the  reasonable  requirements  of  the 
public,  and  a  work  shall  be  deemed  to  be  published 
simultaneously  in  two  places  if  the  time  between  the 
pubUcation  in  one  such  place  and  the  publication  in  the 
other  place  does  not  exceed  fourteen  daj's,  or  such  longer 
period  as  may,  for  the  time  being,  be  fixed  by  Order  in 
Council. 

(4)  \Miere,  in  the  case  of  an  unpublished  work,  the 
making  of  a  work  has  extended  o\er  a  considerable 
period,  the  conditions  of  this  Act  conferring  cop>Tight 
shall  be  deemed  to  have  been  comi^lied  with,  if  the  author 
was,  during  any  substantial  ])art  of  that  period,  a  British 
subject  or  a  resident  within  the  parts  of  His  Majesty's 
dominions  to  which  this  Act  extends. 


798  APPENDIX 

(5)  For  the  purposes  of  the  provisions  of  this  Act  as  to 
residence,  an  author  of  a  work  shall  be  deemed  to  be  a 
resident  in  the  parts  of  His  Majesty's  dominions  to 
which  this  Act  extends  if  he  is  domiciled  within  any 
such  part. 

36.  Subject  to  the  provisions  of  this  Act,  the  enact- 
ments mentioned  in  the  Second  Schedule  to  this  Act 
are  hereby  repealed  to  the  extent  specified  in  the  third 
column  of  that  schedule: 

Provided  that  this  repeal  shall  not  take  effect  in  any 
part  of  His  Majesty's  dominions  until  this  Act  comes 
into  operation  in  that  part. 

37.  (1)  This  Act  may  be  cited  as  the  Copyright  Act, 
1911. 

(2)  This  Act  shall  come  into  operation — 

(a)  in  the  United  Kingdom,  on  the  first  day  of  July 
nineteen  hundred  and  twelve  or  such  earlier 
date  as  may  be  fixed  by  Order  in  Council; 
(6)  in  a  self-governing  dominion  to  which  this  x\ct 
extends,  at  such  date  as  may  be  fixed  by 
the  Legislature  of  that  dominion; 

(c)  in  the  Channel  Islands,  at  such  date  as  may  be 

fixed  by  the  States  of  those  islands  respectively; 

(d)  in  any  other  British  possession  to  which  this  Act 

extends,  on   the   proclamation   thereof  within 
the  possession  by  the  Governor. 


APPENDIX  799 


SCHEDULES 
First  Scbedole 

EXIBTINO    RIOHTfl 


I-'xistitiK  RiRlit 


Siiljxtituted  RiKht 


(a)  In  the  case  of  Works  other  than  Dramaiic  and  Mxtaicc*  Worka 
Copyright.  ICopyright  as  defined  by  this  Act.* 

(b)   In  the  case  of  Musical  and  Dramatic  Works 
Copyright  as  defined  by  this  Act.' 


Botli  copyright  and  performing 

riglit. 
Copyright ,  l)ut  not   performing 

right. 

Performing  right  but  not  copy- 
riglit. 


Copyriglit  a.s  defined  by  this  Act,  except  the  sole  right  to 

perform   the   work   or   any   substantial   part   thereof   in 

public. 
The  sole  right  to  perform  the  work  in  public,  but  none  of 

the  other  rights  comprised  in  copyright  as  defined  by 

this  Act. 


For  the  purpo.so.s  of  this  Schedule  tlie  following  ex- 
pressions, where  used  in  the  first  colunm  thereof,  have  the 
following  meanings: 

"Copyright,"  in  the  case  of  a  work  which  according  to 
the  law  in  force  immediately  before  the  commence- 
ment of  this  Act  has  not  been  publi.shed  before  that 
date  and  statutory  copyright  wherein  depends  on 
publication,  includes  the  right  at  common  law  (if 
any)  to  restrain  publication  or  other  dealing  with 
the  work ; 
"Performing  right,"  in  the  case  of  a  work  which  has 
not  i)een  j)erformetl  in  public  before  the  commence- 
ment of  this  Act,  includes  the  right  at  common  law 

'  In  the  case  of  an  essay,  article,  or  portion  forniin^  part  of  and  first 
pul)lislie(l  in  a  review,  niaj;;azine,  or  other  ix-riodieal  or  work  of  a  like 
nature,  the  riglit  sliall  be  sul>ject  to  any  riglit  of  j)ublislung  the  essay, 
article,  or  portion  in  a  separate  form  to  which  the  author  is  entitled  at 
the  coininenceinent  of  this  Act,  or  would,  if  this  Act  had  not  been 
pas.sed,  have  become  entitled  under  section  eighteen  of  the  Copyright 
Act,  1S42. 


800  APPENDIX 

(if   any)    to  restrain   the   performance   thereof  in 


public. 


Second  Schedule 
enactments  repealed 


Session  and 
Chapter 


8  Geo  2.  c.  13. .. 
7  Geo.  3.  c.  38.  .. 
1.5  Geo.  3.  c.  53. . 
17  Geo.  3.  c.  57. . 
54  Geo.  3.  c.  56.  . 
3  &  4  Will.  4.  c.  15 

5  &  6  Will.  4.  c.  65 

6  «fe  7  Will.  4.  c.  59 

6&  7  Will.  4.  c.  110 
5  &  6  Vict.  c.  45.  . 

7  &  8  Viet.  c.  12,  . 
10  &  11  Vict.  c.  95 
15  &  16  Vict.  c.  12 
25  &  26  Vict.  0.  68 


38  &  39  Vict.  c.  12. 

39  &  40  Vict.  c.  36. 


45  &  46  Vict.  c.  40. 


49  A  50  Vict.  c.  33. 
51  &  52  Vict.  c.  17. 


52  &  53  Vict.  c.  42 . 


6  Edw.  7.  c.  36. 


Short  Title 


The  Eneravine  Copyright  Act.  1734. 
The  Engraving  Copyright  Act,  1767..  . 

The  Copyright  Act.  1775 

The  Prints  Copyright  Act,  1777 

The  Sculpture  Copyright  Act,  1814 

The  Dramatic  Copyright  Act,  1833..  .  . 
The  Lectures  Copyright  Act,  1835.  .  .  . 
The  Prints  and  Engravings  Copyright 
(Ireland)  Act,  1836. 

The  Copyright  Act,  1836 

The  Copyright  Act,  1842 

The  International  Copyright  Act,  1844 

The  Colonial  Copyright  Act,  1847 

The  International  Copyright  Act,  1852 
The  Fine  Arts  Copyright  Act,  1862. 


The  International  Copyright  Act,  1875 
The  Customs  Consolidation  Act,  1876 


The  Copvright  (Musical  Compositions) 

Act,  1882. 
The  International  Copyright  Act,  188(i 
The  Copyright  (Musical  Compositions) 

Act,  1888.   , 
The  Revepue  Act,  1889 


Extent  of  Repeal 


The 
The 
The 
The 
The 
The 
The 
The 


whole  Act. 
whole  Act. 
whole  Act. 
whole  Act. 
whole  Act. 
whole  Act. 
whole  Act. 
whole  Act. 


The  Musical  Copyright  Act,  1006. 


The  whole  Act. 

The  whole  Act. 

The  whole  Act. 

The  whole  Act. 

The  whole  Act. 

.Sections  one  to  six.  In 
section  eight  the  words 
"and  pursuant  to  any 
Act  for  the  protection 
of  copyright  engrav- 
ings," and  "and  in  any 
such  Act  as  aforesaid." 
Sections  nine  to  twelve. 

The  whole  Act. 

Section  forty-two,  from 
"liooks  wherein"  to 
"such  cojiyright  will 
expire."  Sections  forty- 
four,  forty-five  and  one 
hundred    and    fifty-two. 

The  whole  Act. 

The  whole  Act. 
The  whole  Act. 

Section  one,  from  "Books 
first  published"  to  "as 
provided  in  that  sec- 
tion." 

In  section  three  the 
words  "and  which  has 
been  registered  in  ac- 
cordance with  the  pro- 
visions of  (he  Copy- 
right Arl,  1SI2.  or  of 
(lie  Inlcrnalional  Copy- 
right Act,  IS  11,  which 
rcgisl  ration  may  bo 
efTectcd  notwithstand- 
ing anything  in  tho 
International  Copy- 

right Act.  1880." 


jFrom  the  ofTicial  edition  of  the  Art  printed  by  Eyre  and  Spottiswi 
Bailey,  the  King's  Printer,  London,    ii,  29  pp.  am.  4°.] 


ode   for   Rowluud 


Addenda 

PREviors  roPYRir.iiT  acts  not  repeai.ed 

IKejJcaled  matter  indicated  by  italics  and  brackets] 

The  Fine  Arts  Copyright  Act,  1862 

25  AND  2G  \ictoria,  Chapter  G8 

AN  ACT  for  amcndiiiR  tlio  Law  rolutinp;  to  Copyright  in  Works  of  the 
Fine  Arts,  and  for  ropressinp;  the  C'oniniissioii  of  Fraud  in  the  Pro- 
duction and  Sale  of  such  Works.    129tli  July,  1862.] 

Whereas  by  Law,  as  now  established,  the  Authors  of 
Paintings,  Drawings,  and  Photographs  have  no  Copy- 
riglit  in  such  tlieir  Worlvs,  and  it  is  expedient  that  the 
Law  sliould  in  tliat  respect  be  amended;  Be  it  therefore 
enacted  by  the  Queen's  most  Excellent  Majesty,  by  and 
with  the  Advice  and  Consent  of  the  Lords  Spiritual  and 
Temporal,  and  Commons,  in  this  present  Parliament 
assembled,  and  by  the  Authority  of  the  same,  as  follows: 

[Sections  1-6  arc  repealed  by  the  Copyright  Act,  1911.] 

7.  No  Person  shall  do  or  cause  to  be  done  any  or  either 
of  the  following  Acts;  that  is  to  say. 

First,  no  Person  shall  fraudulently  sign  or  otherwise 
affix,  or  fraudulently  cause  to  be  signed  or  otherwi.se 
affixed,  to  or  upon  any  Painting,  Drawing,  or  Photograph, 
or  the  Negative  thereof,  any  Name,  Initials,  or  Mono- 
gram : 

801 


802  APPENDIX 

Secondly,  no  Person  shall  fraudulently  sell,  publish, 
exhibit,  or  dispose  of,  or  offer  for  Sale,  Exhibition,  or 
Distribution,  any  Painting,  Drawing,  or  Photograph,  or 
Negative  of  a  Photograph,  having  thereon  the  Name, 
Initials,  or  Monogram  of  a  Person  who  did  not  execute 
or  make  such  Work: 

Thirdly,  no  Person  shall  fraudulently  utter,  dispose  of, 
or  put  off,  or  cause  to  be  uttered  or  disposed  of,  any  Copy 
or  colorable  Imitation  of  any  Painting,  Drawing,  or 
Photograph,  or  Negative  of  a  Photograph,  whether  there 
shall  be  subsisting  Copyright  therein  or  not,  as  having 
been  made  or  executed  by  the  Author  or  Maker  of  the 
original  Work  from  which  such  Copy  or  Imitation  shall 
have  been  taken  : 

Fourthly,  where  the  Author  or  Maker  of  any  Painting, 
Drawing,  or  Photograph,  or  Negative  of  a  Photograph, 
made  either  before  or  after  the  passing  of  this  Act,  shall 
have  sold  or  otherwise  parted  with  the  Possession  of  such 
Work,  if  any  Alteration  shall  afterwards  be  made  therein 
by  any  other  Person,  by  Addition  or  otherwise,  no  Person 
shall  be  at  liberty  during  the  life  of  the  Author  or  Maker 
of  such  Work,  without  his  Consent,  to  make  or  knowingly 
to  sell  or  publish,  or  offer  for  Sale,  such  Work  or  any 
Copies  of  such  Work  so  altered  as  aforesaid,  or  of  any  Part 
thereof,  as  or  for  the  unaltered  Work  of  such  Author  or 
Maker: 

Every  Offender  under  this  Section  shall,  upon  Con- 
viction, forfeit  to  the  Person  aggrieved  a  Sum  not  exceed- 
ing Ten  Pounds,  or  not  exceeding  double  the  full  Price,  if 
any,  at  which  all  such  ('opies,  Engravings,  Imitations,  or 
altered  Works  shall  have  been  sold  or  ofTered  for  Sale;  and 


APPENDIX  803 

all  such  Copies,  Engravings,  Imitations,  or  altered  Works 
shall  be  forfeited  to  the  Person,  or  the  Assigns  or  legal 
Representatives  of  the  Person,  whose  Name,  Initials,  or 
Monogram  shall  be  so  fraudulently  signed  or  affixed 
thereto,  or  to  whom  sueh  spurious  or  altered  Work  shall 
he  so  fraudulently  or  falsely  ascribed  as  aforesaid:  Vvo- 
x'ldvd  always,  that  the  Penalties  imposed  by  this  Secticjn 
shall  not  be  incurred  unless  the  Person  whose  Name, 
Initials,  or  Monogram  shall  be  so  fraudulently  signed  or 
affixed,  or  to  whom  such  spurious  or  altered  Work  shall  be 
so  fraudulently  or  falsely  ascribed  as  aforesaid,  shall  have 
been  living  at  or  within  Twenty  Years  next  before  the 
Time  when  the  OlTence  may  have  been  committed. 

8.  All  pecuniary  Penalties  which  shall  be  incurred, 
and  all  such  unlawful  Copies,  Imitations,  and  all  other 
Effects  and  Things  as  shall  have  been  forfeited  by  Of- 
fenders, pursuant  to  this  Act  [and  pursuant  to  any  Act 
for  the  Profcdion  of  Copijriylit  Engnirings],  may  be  re- 
covered by  the  Person  herein-before  [and  in  any  such  Act 
as  aforesaid]  empowered  to  recover  the  same  respectively, 
and  herein-after  called  the  Complainant  or  the  Com- 
plainer,  as  follows: 

In  England  and  Ireland,  either  by  Action  against  the 
Party  offending,  or  by  summary  Proceeding  before  any 
two  Justices  having  Jurisdiction  where  the  Party  (jffcnd- 
ing  resides: 

In  Scotland  by  Action  before  the  Court  of  Session  in 
ordinary  Form,  or  by  summary  Action  before  the  Sheriff 
of  the  County  where  the  Offence  may  be  committed  or 
the  Offender  resides,  *  *  *  r^l^^\  .yiy  .Judirjnont  so 
to  be  pronounced  by  the  Sheriff  in  such  suinniary  Ajipli- 


804  APPENDIX 

cation  shall  be  final  and  conclusive,  and  not  subject 
to  Re\dew  by  [Advocation],  Suspension,  Reduction,  or 
otherwise. 

[Sees.  9-12  repealed  by  the  Copyright  Act,  1911.] 

[From  "The  Statutes  of  the  United  Kingdom  of  Great  Britain  and 
Ireland."  Vol.  25,  4°.  By  G:  Kettilby  Rickards.  London,  G:  E: 
Eyre  and  W:  Spottiswoode,  1862,  pp.  750-752.] 

The  Customs  Consolidation  Act,  1876 
39  and  40  Victoria,  Chapter  36 

AN  ACT  to  consoUdate  the  Customs  Laws.    [24th  July,  1876.] 
***** 

AS  TO  THE  IMPORTATION,   PROHIBITION,   ENTRY,   EXAMINA- 
TION,   LANDING,    AND   WAREHOUSING   OF   GOODS 

***** 

42.  The  goods  enumerated  and  described  in  the  follow- 
ing table  of  prohibitions  and  restrictions  inwards  are 
hereby  prohibited  to  be  imported  or  brought  into  the 
United  Kingdom,  save  as  thereby  excepted,  and  if  any 
goods  so  enumerated  and  described  sliall  be  imported  or 
brought  into  the  United  Kingdom  contrary  to  the  prohi- 
bitions or  restrictions  contained  therein,  such  goods  shall 
be  forfeited,  and  may  be  destroyed  or  otherwise  disposed 
of  as  the  Commissioners  of  Customs  may  direct. 

A    TABLE    OF    PROHIBITIONS    AND    RESTRICTIONS    INWARDS 

Goods  prohibited  to  be  imported 

[Books  wherein  the  copyright  shall  be  first  subsisting, 
first  composed,  or  written  or  printed,  in  the  United  King- 


APPENDIX  805 

dom,  and  printed  or  reprinted  in  any  other  country,  as 
to  which  the  proprietor  of  such  copyright  or  his  agent  shall 
have  given  to  the  Commissioners  of  Customs  a  notice  in 
writing,  duly  declared,  that  such  copyright  subsists,  such 
notice  also  stating  when  such  copyright  will  expire.] 


Indecent  or  obscene  i)nnts,  paintings,  photographs, 
books,  cards,  lithographic  or  other  engravings,  or  any 
other  indecent  or  obscene  articles. 

[Sees.  44  o.^^d  45  are  repealed  by  the  Copyright  Act,  191 1.] 


151.  The  Customs  Acts  shall  extend  to  and  be  of  full 
force  and  effect  in  the  several  British  possessions  abroad, 
except  where  otherwise  expressly  j)rovided  for  by  the 
said  Acts,  or  limited  by  express  reference  to  the  United 
Kingdom  or  the  Channel  Islands,  and  except  also  as  to 
any  such  j)ossession  as  shall  by  local  Act  or  ordinance 
have  provided,  or  may  hereafter,  with  the  sanction  and 
approbation  of  Her  Majesty  and  her  successors,  make 
entire  provision  for  the  management  and  regulation  of 
the  Customs  of  any  such  possession,  or  make  in  like  man- 
ner express  provisions  in  lieu  or  variation  of  any  of  the 
clauses  of  the  said  Act  for  the  purposes  of  such  posses- 
sion. 

[Sec.  152  repealed  by  the  Copyright  Act,  1911.] 

[From  "Till'  Law  Ri'jxirt-s.  Tlio  Tuhlic  Cleuoral  Statutes,  1N7G."' 
Vol.  11,  8°.  London,  William  Clowes  and  Sons,  1876,  pp.  171,  ISl- 
182,  210.) 


806  APPENDIX 


The    Musical    (Summary    Proceedings)    Copyright 

Act,  1902 

2  Edward  VIL,  Chapter  15 

AN  ACT  to  amend  the  Law  relating  to  Musical  Copyright.  [22nd 
July,  1902.] 

Be  it  enacted  by  the  King's  most  Excellent  Majesty,  by 
and  with  the  advice  and  consent  of  the  Lords  Spiritual  and 
Temporal,  and  Commons,  in  this  present  Parliament  as- 
sembled, and  by  the  authority  of  the  same,  as  follows: 

1.  A  court  of  summary  jurisdiction,  upon  the  applica- 
tion of  the  owner  of  the  copyright  in  any  musical  work, 
may  act  as  follows:  If  satisfied  by  evidence  that  there  is 
reasonable  ground  for  believing  that  pirated  copies  of 
such  musical  work  are  being  hawked,  carried  about,  sold 
or  offered  for  sale,  may,  by  order,  authorize  a  constable 
to  seize  such  copies  without  warrant  and  to  bring  them 
before  the  court,  and  the  court,  on  proof  that  the  copies 
are  pirated,  may  order  them  to  be  destroyed,  or  to  be  de- 
li\'ered  up  to  the  owner  of  the  copyright  if  he  makes 
application  for  that  delivery. 

2.  If  any  person  shall  hawk,  carry  about,  sell  or  offer  for 
sale  any  pirated  copy  of  any  musical  work,  every  such 
pirated  copy  may  be  seized  l)y  any  constable  witliout  war- 
rant, on  the  ro(iuest  in  writing  of  the  ai)parent  owner  of  the 
copyright  in  such  work,  or  of  his  agent  thereto  author- 
ized in  writing,  and  at  the  risk  of  such  owner. 

On  seizure  of  any  such  copies,  they  shall  he  conveyed 
by  such  constable  before  a  court  of  summary  jurisdiction, 


APPENDIX  807 

and,  on  proof  that  they  arc  infringomonts  of  rop\TiKht. 
shall  bo  forfeited  or  destroyed,  or  otherwise  dealt  with,  as 
the  eourt  may  think  fit. 

3.  ''Musical  copyright"  means  the  exclusive  right  of 
the  owner  of  such  copyright,  under  the  Copyright  Act.s 
in  force  for  the  time  being,  to  do,  or  to  authorize  another 
person  to  do,  all  or  any  of  the  following  things  in  respect 
of  a  musical  work : — 

(1)  To  make  copies  by  writing  or  otherwise  of  such 
musical  work. 

(2)  To  abridge  such  musical  work. 

(3)  To  make  any  new  adaptation,  arrangement  or 
setting  of  such  musical  work,  or  of  the  melody  thereof, 
in  any  notation  or  sy.stem. 

"Musical  work"  means  any  combination  of  melody 
and  harmooy,  or  either  of  them,  printed,  reduced  to 
WTiting,  or  otherwise  graphically  produced  or  repro- 
duced, 

"Pirated  musical  work"  means  any  musical  work  writ- 
ten, printed  or  otherwise  reproduced,  without  the  consent 
lawfully  given  by  the  owner  of  the  copyright  in  such 
musical  work. 

4.  This  Act  may  be  cited  as  The  Musical  (Summary 
Proceedings)  Copyright  Act,  1902,  and  shall  come  into 
operation  on  the  first  day  of  October  one  thousand  nine 
hundretl  and  two,  and  shall  ai)i)ly  only  to  the  United 
Kingdom. 

[From  "Till'  Luw  Rc|W)rts.  The  Put.lic  Genoml  Statutes,  I'.tOJ." 
Vol.  40,  8°.     Ix)ndon,  Williuin  Clowes  &  Sons,  Ltd.,  IIHW,  p.   IS.) 


808  APPENDIX 

The  Musical  Copyright  Act,  1906 
6  Edward  VII.,  Chapter  36 

AN  ACT  to  amend  the  law  relating  to  Musical  Copyright.    [4th 
August,  1906.] 

Be  it  enacted  by  the  King's  most  Excellent  Majesty,  by 
and  with  the  advice  and  consent  of  the  Lords  Spiritual  and 
Temporal,  and  Commons,  in  this  present  Parliament  as- 
sembled, and  by  the  authority  of  the  same,  as  follows : 

1.  (1)  Every  person  who  prints,  reproduces,  or  sells,  or 
exposes,  offers,  or  has  in  his  possession  for  sale,  any 
pirated  copies  of  any  musical  work,  or  has  in  his  possession 
any  plates  for  the  purpose  of  printing  or  reproducing 
pirated  copies  of  any  musical  work,  shall  (unless  he  proves 
that  he  acted  innocently)  be  guilty  of  an  offence  punish- 
able on  summary  conviction,  and  shall  be  liable  to  a  fine 
not  exceeding  five  pounds,  and  on  a  second  or  subsequent 
conviction  to  imprisonment  with  or  without  hard  labor 
for  a  term  not  exceeding  two  months  or  to  a  fine  not 
exceeding  ten  pounds:  Provided  that  a  person  convicted 
of  an  offence  under  this  Act  who  has  not  previously  been 
convicted  of  such  an  offence,  and  who  proves  that  the 
copies  of  the  musical  work  in  respect  of  which  the  offence 
was  committed  had  printed  on  the  title  page  thereof  a 
name  and  address  purporting  to  be  that  of  the  printer  or 
publisher,  shall  not  be  liable  to  any  penalty  under  this 
Act  unless  it  is  proved  that  the  copies  were  to  his  knowl- 
edge pirated  copies. 

(2)  Any  constable  may  take  into  custody  without  war- 


APPENDIX  80d 

rant  any  person  who  in  any  street  or  public  place  sells  or 
exposes,  offers,  or  has  in  his  possession  for  sale  any  pirated 
copies  of  any  such  musical  work  as  may  be  specified  in  any 
general  written  authority  addressed  to  the  chief  officer  of 
police,  and  signed  by  the  apparent  owner  of  th"  copjTight 
in  such  work  or  his  agent  thereto  authorized  in  writing, 
ro(iucsting  the  arrest,  at  tlie  risk  of  such  owner,  of  all 
persons  f(jund  committing  offences  under  this  section  in 
respect  to  such  work,  or  who  offers  for  sale  any  pirated 
copies  of  any  such  specified  musical  work  by  personal 
canvass  or  by  personal]}'  delivering  advertisements  or 
circulars. 

(3)  A  copy  of  e\'ery  written  authority  addressed  to  a 
chief  officer  of  police  under  this  section  shall  be  open  to 
inspection  at  all  reasonable  hours  by  any  person  without 
payment  of  any  fee,  and  any  person  may  take  copies  of 
or  make  extracts  from  any  such  authority. 

(4)  Any'  person  aggricn'od  l)y  a  summary  conviction 
under  this  section  may  in  r^ngland  or  Ireland  api)eal  to  a 
court  of  quarter  sessions,  and  in  Scotland  under  and  in 
terras  of  the  Summary  Prosecutions  Appeals  (Scotland) 
Act,  1875. 

2.  (1)  If  a  court  of  summary  jurisdiction  is  satisfied 
by  information  on  oath  that  there  is  reasonable  ground  for 
suspecting  that  an  offence  against  this  Act  is  being  com- 
mitted on  any  premises,  the  court  may  gi-ant  a  search 
warrant  authorizing  the  constable  named  therein  to  enter 
the  premises  between  the  liours  of  six  of  the  clock  in  the 
morning  and  nine  of  the  clock  in  the  evening,  and,  if 
necessary,  to  us(^  force  for  making  such  entry,  whether  by 
breaking  open  doors  or  otlicrwise,  and  to  seize  any  copies 


810  APPENDIX 

of  any  musical  work  or  any  plates  in  respect  of  which  he 
has  reasonable  ground  for  suspecting  that  an  offence 
against  this  Act  is  being  committed. 

(2)  All  copies  of  any  musical  work  and  plates  seized 
under  this  section  shall  be  brought  before  a  court  of 
summary  jurisdiction,  and  if  proved  to  be  pirated  copies 
or  plates  intended  to  be  used  for  the  printing  or  repro- 
duction of  pirated  copies  shall  be  forfeited  and  destroyed 
or  otherwise  dealt  with  as  the  court  think  fit. 

3.  In  this  Act — 

The  expression  "pirated  copies"  means  any  copies  of 
any  musical  work  written,  printed,  or  otherwise  repro- 
duced without  the  consent  lawfully  given  by  the  owner 
of  the  copyright  in  such  musical  work: 

The  expression  "musical  work"  means  a  musical  work 
in  which  there  is  a  subsisting  copyright,  [and  which  has 
been  registered  in  accordance  with  the  provisions  of  the 
Copyright  Act,  1842,  or  of  the  International  Copyright 
Act,  1844,  which  registration  may  be  effected  notwith- 
standing anything  in  the  International  Copyright  Act, 
1886]: 

The  expression  "plates"  includes  any  stereotype  or 
other  plates,  stones,  matrices,  transfers,  or  negatives 
used  or  intended  to  be  used  for  printing  or  reproducing 
copies  of  any  musical  work:  Provided  that  the  expres- 
sions "pirated  copies"  and  "plates"  shall  not,  for  the 
purposes  of  this  Act,  be  deemed  to  include  perforated 
music  rolls  used  for  flaying  mechanical  instruments,  or 
records  used  for  the  reproduction  of  sound  waves,  or  the 
matrices  or  other  aj)i)liances  by  which  such  rolls  or  records 
respectively  arc  made: 


APPENDIX  811 

Tho  oxprossion  "chief  officer  of  police" — 

(a)  with  respect  to  the  City  of  London,  means  the 

Commissioner  of  City  Police; 
(6)  elsewhere  in  England  has  the  same  meaning  as  in 

the  Police  Act,  1890; 
(c)  in  Scotland  has  the  same  meaning  as  in  the  Police 

(Scotland)  Act.  1S90; 
{d)  in  the  police  district  of  Dublin  metropolis  means 
either  of  the  Commissioners  of  Police  for  the  said 
district; 
(e)  elsewhere  in  Ireland  means  the  District  Inspector 

of  the  Royal  Irish  Constabulary: 
The  expression   "court   of  summary  jurisdiction"   in 
Scotland  means  the  sheriff  or  any  magistrate  of  any  royal, 
parliamentary,  or  police  burgh  officiating  under  the  pro- 
visions of  any  local  or  general  police  Act. 

4.  This  Act  may  be  cited  as  the  Musical  Copyright  Act, 
lOOC). 

[From  "Thf  Law  H.-ports.     The  Piil)lic  C.oneral  Statutes,  1906." 
Vol.  44,  8".    Loadoa,  Rowland  Bailey,  11»00,  pp.  98-lOO.J 


CANADIAN  COPYRIGHT  ACT 

CHAPTER  70 

AN  ACT  respecting  Copyright 

SHORT   TITLE 

1.  This  Act  may  be  cited  as  the  Copyright  Act.  R.  S., 
c.  62,  s.  1. 

INTERPRETATION 

2.  In  this  Act,  unless  the  context  otherwise  requires, — 

(a)  "Minister"  means  the  Minister  of  Agriculture; 

(b)  "Department"  means  the  Department  of  Agricul- 

ture; 

(c)  "legal  representatives "  includes  heirs,  executors,  ad- 

ministrators and  assigns,  or  other  legal  representa- 
tives.   R.  S.,  c.  62,  s.  2. 

Part  I 
REGISTERS  OF  COPYRIGHTS 

3.  The  Minister  shall  cause  to  be  kept,  at  the  Depart- 
ment, books  to  be  called  the  Registers  of  Copyrights,  in 
which  proprietors  of  literary,  scientific  and  artistic  works 
or  conii)()sili()ns,  may  have  the  same  registered  in  atrcord- 
ance  with  the  provisions  of  this  Act.    R.  S.,  c.  62,  s.  3. 

812 


APPENDIX  813 

SUBJECTS   AND    CONDITIONS   OF   COPYRinnT 

4.  Any  person  doniicilrd  in  Canada  or  in  any  i)art  of  the 
British  possessions,  or  any  citizen  of  any  country  whicli 
has  an  international  coi)yriglit  treaty  with  the  United 
Kingdom,  who  is  the  author  of  any  book,  map,  chart  or 
musical  conii)()sition,  or  of  any  original  painting,  drawing, 
statue,  sculpture  or  photograph,  or  who  invents,  designs, 
etches,  engraves  or  causes  to  be  engraved,  etched  or  made 
from  his  own  design,  any  print,  cut,  or  engra\'ing,  and 
the  legal  representatives  of  such  person  or  citizen,  shall 
for  the  term  of  twenty-eight  years,  from  the  time  of  record- 
ing the  copyright  thereof  in  the  manner  hereinafter  di- 
rected, have  the  sole  and  exclusive  right  and  liberty  of 
printing,  reprinting,  publishing,  reproducing  and  vending 
such  literarj^  scientific  or  artistic  work  or  composition, 
in  whole  or  in  part,  and  of  allowing  translations  of  such 
work  from  one  language  into  other  languages  to  be  printed 
or  rei)rinted  and  sold.    R.  S.,  c.  G2,  s.  4. 

5.  In  no  case  shall  the  said  sole  and  exclusive  right  and 
liberty  in  Canada  continue  to  exist  after  it  has  expired 
elsewhere.    R.  S.,  c.  G2,  s.  5. 

6.  The  condition  for  obtaining  such  copyright  shall  be 
that  the  said  literary,  .scientific  or  artistic  works  .shall  be 
printed  and  published  or  reprinted  aiul  republisluxl  in 
Canada,  or  in  the  case  of  works  of  art  that  they  .shall  Ix? 
produced  or  reproduced  in  Canada,  whether  they  are  so 
published  or  j)roduced  for  the-first  time,  or  contemi)oran(^ 
ously  with  or  .sub.<;e(iuently  to  publication  or  ])ro(hu'tion 
elsewhere.    R.  S.,  c.  ()2,  s.  o. 

7.  No  hterarj',  scientific  or  artistic  work  which  is  im- 


814  APPENDIX 

moral,  licentious,  irreligious,  or  treasonable  or  seditious, 
shall  be  the  legitimate  subject  of  such  registration  or 
copyright.    R.  S.,  c.  62,  s.  5. 

8.  Every  work  of  which  the  copyright  has  been  granted 
and  is  subsisting  in  the  United  Kingdom,  and  copyright  of 
which  is  not  secured  or  subsisting  in  Canada,  under  any 
Act  of  the  Parliament  of  Canada,  or  of  the  Legislature 
of  the  late  province  of  Canada,  or  of  the  legislatiu-e  of 
any  of  the  provinces  forming  part  of  Canada,  shall,  when 
printed  and  published,  or  reprinted  and  repubhshed  in 
Canada,  be  entitled  to  copyright  under  this  Act;  but 
nothing  in  this  Act  shall,  except  as  hereinafter  provided, 
be  held  to  prohibit  the  importation  from  the  United 
Kingdom  of  copies  of  any  such  work  lawfully  prmted 
there. 

2.  If  any  such  copyright  work  is  reprinted  subsequently 
to  its  pubhcation  in  the  United  Kingdom,  any  person 
who  has,  previously  to  the  date  of  entry  of  such  work 
upon  the  Registers  of  Copyright,  imported  any  foreign 
reprints,  may  dispose  of  such  reprints  by  sale  or  other- 
wise; but  the  burden  of  proof  of  establishing  the  extent 
and  regularity  of  the  transaction  shall  in  such  case  be 
upon  such  person.    R.  S.,  c.  G2,  s.  G;  G3-64  V.,  c.  25,  s.  1. 

9.  Any  literary  work  intended  to  be  published  in  pamph- 
let or  book  form,  but  which  is  first  published  in  separate 
articles  in  a  newspaper  or  periodical,  may  1)0  n^gistered 
under  this  Act  while  it  is  so  preliminarily  ])ublished,  if 
the  title  of  the  manuscript  and  a  short  analysis  of  the 
work  arc  deposited  at  Ihe  D(>partment,  and  if  every 
s(!parate  article  so  i)ublished  is  iireccnled  by  the  words, 
Registered  in  accordance  with  the  Copyright  Act:  Provided 


APPENDIX  815 

that  the  work,  wlion  published  in  book  or  pamphlet  form, 
shall  be  subject,  also,  to  the  other  requirements  of  this 
Act.    R.  8.,  c.  02,  s.  7. 

10.  If  a  book  is  published  anonymously,  il  shall  be 
sufTicionl  to  enter  it  in  the  name  of  the  fir.st  publisher 
thereof,  either  on  behalf  of  the  un-named  author  or  on 
behalf  of  such  first  i)ublisher,  as  the  case  may  be.  R.  S., 
c.  62,  s.  8. 

1 1.  No  person  shall  be  entitled  to  the  benefit  of  this  Act 
unless  he  has  deposited  at  the  De])artin(Mit  tliree  copies 
of  the  book,  map,  chart,  musical  composition,  photograph, 
print,  cut,  or  engraving,  and  in  the  case  of  paintings, 
drawings,  statuary  and  sculpture,  unless  he  has  furnished 
a  wTitten  description  of  such  works  of  art;  and  the  Min- 
ister shall  cause  the  copyright  of  the  same  to  be  recorded 
forthwith  in  a  book  to  be  kept  for  that  purpose,  in  the 
manner  adopted  by  him,  or  i)rcsci'il)ed  b}-  the  rules  and 
forms  made,  from  time  to  time,  as  herein  provided.  R.  S., 
c.  62,  s.  9;  58-59  V.,  c.  37,  s.  1. 

12.  The  ^Minister  shall  cause  one  of  such  three  copies 
of  such  book,  map,  chart,  musical  composition,  photo- 
gi-aph,  print,  cut,  or  engraving,  to  be  deposited  in  the 
Libraiy  of  the  Parliament  of  Canada  and  one  in  the  Brit- 
ish Museum.    R.  S.,  c.  62,  s.  10;  58-59  V.,  c.  37,  s.  2. 

13.  It  shall  not  be  retjuisite  to  deliver  any  i)rinted 
copy  of  the  second  or  of  any  subsequent  edition  of  any 
book  unless  the  same  contains  very  important  alterations 
or  additions.    R.  S.,  c.  02,  s.  11. 

14.  No  ])erson  shall  be  entitled  to  the  benelit  of  this 
Act  unless  he  gives  information  of  the  coi)y right  being 
secured, — 


816  APPENDIX 

(a)  if  the  work  is  a  book,  by  causing  to  be  inserted  in 
the  several  copies  of  every  edition  pubUshed  during 
the  term  secured,  on  the  title  page,  or  on  the  page 
immediately  following;  or, 

(b)  if  the  work  is  a  map,  chart,  musical  composition, 
print,  cut,  engraving  or  photograph,  by  causing  to 
be  impressed  on  the  face  thereof;  or, 

(c)  if  the  work  is  a  volume  of  maps,  charts,  music,  en- 
gravings or  photographs,  by  causing  to  be  impressed 
upon  the  title  page  or  frontispiece  thereof; 

the  words,— "Copyright,  Canada,  190  ,  by  A.  B."  7-8 
Ed.  VIL,  c.  17,  s.  1. 

2.  As  regards  paintmgs,  drawings,  statuary  and  sculp- 
tures, the  signature  of  the  artist  shall  be  deemed  a  suffi- 
cient notice  of  such  proprietorship.    R.  S.,  c.  62,  s.  12. 

15.  The  author  of  any  literary,  scientific  or  artistic 
work  or  his  legal  representatives,  may,  pending  the  pub- 
lication or  republication  thereof  in  Canada,  obtain  an 
interim  copyright  therefor  by  depositing  at  the  Depart- 
ment a  copy  of  the  title  or  a  designation  of  such  work, 
intended  for  publication  or  republication  in  Canada. 

2.  Such  title  or  designation  shall  be  registered  in  an 
interim  copyright  register  at  the  Department  to  secure 
to  such  author  aforesaid  or  his  legal  representatives,  the 
exclusive  rights  recognized  by  this  Act,  previous  to  pub- 
Ucation  or  republication  in  Canada. 

3.  Such  interim  registration  shall  not  endure  for  more 
than  one  month  from  the  date  of  the  original  ])ul)licalioii 
els(>wh('re,  within  which  period  the  work  shall  be  printed 
or  reprinted  and  pul)lislied  in  Canada. 

4.  In  every  case  of  interim  registration  under  tliis  Act 


APPENDIX  817 

the  author  or  his  logal  representatives  shall  cause  iu)Uvv. 
of  such  registration  to  be  inserted  once  in  the  Canada 
Gazelle.    R.  S.,  c.  02,  s.  13. 

IG.  The  application  for  the  registration  of  a  copyright, 
or  of  a  teniporar>'  or  of  an  interim  copyright  may  be 
made  in  the  name  of  the  author  or  of  his  legal  representa- 
tives, by  any  person  purporting  to  be  agent  of  such  author 
or  legal  representatives. 

2.  Any  damage  caused  by  a  fraudulent  or  an  erroneou.s 
assumption  of  such  authority  shall  be  recoverable  in  any 
court  of  competent  jurisdiction.    R.  S.,  c.  62,  s.  14. 

ASSIGNMENTS   AND    RENEWALS 

17.  The  right  of  an  author  of  a  hterary,  scientific  or 
artistic  work  to  o))tain  a  copyright,  and  the  copyright 
when  obtained,  shall  be  assignable  in  law,  either,  as  U) 
the  whole  interest  or  any  part  thereof,  by  an  instrument 
in  writing,  made  in  duplicate,  and  which  shall  be  regis- 
tered at  the  Department  on  production  of  both  duplicates 
and  payment  of  the  fee  hereinafter  mentioned. 

2.  One  of  the  duplicates  shall  be  retained  at  the  De- 
partment, and  the  other  shall  be  returned,  with  a  certif- 
icate of  registration,  to  the  person  depositing  it.  R.  S., 
c.  62,  s.  15. 

18.  Whenever  the  author  of  a  literarj',  scientific  or  artis- 
tic work  or  composition  which  may  be  the  subject  of  copy- 
right has  executed  the  same  for  another  person,  or  has 
sold  the  same  to  another  person  for  due  consideration, 
such  author  shall  not  be  entitled  to  obtain  or  to  retain 
the  proprietorship  of  such  copyright,  which  is,  by  the 
said  transaction,  virtually  transferred  to  the  purchaser, 


818  APPENDIX 

and  such  purchaser  may  avail  himself  of  such  privilege, 
unless  a  reserve  of  the  privilege  is  specially  made  by  the 
author  or  artist  in  a  deed  duly  executed.    R.  S.,  c.  62,  s.  16. 

19.  If,  at  the  expiration  of  the  said  term  of  twenty- 
eight  years,  the  author,  or  any  of  the  authors  when  the 
work  has  been  originally  composed  and  made  by  more 
than  one  person,  is  still  Hving,  or  if  such  author  is  dead 
and  has  left  a  widow  or  a  child,  or  children  living,  the 
same  sole  and  exclusive  right  and  hberty  shall  be  con- 
tinued to  such  author,  or  to  such  authors  still  living,  or, 
if  dead,  then  to  such  widow  and  child  or  children,  as  the 
case  may  be,  for  the  further  term  of  fourteen  years;  but 
in  such  case,  within  one  year  after  the  expiration  of  such 
term  of  twenty-eight  years,  the  title  of  the  work  secured 
shall  be  a  second  time  registered,  and  all  other  regulations 
herein  required  to  be  observed  in  regard  to  original  copy- 
rights shall  be  complied  with  in  respect  to  such  renewed 
copyright.    R.  S.,  c.  62,  s.  17. 

20.  In  all  cases  of  renewal  of  copyright  under  this  Act 
the  author  or  proprietor  shall,  within  two  months  from 
the  date  of  such  renewal,  cause  notice  of  the  registration 
thereof  to  be  pubhshed  once  in  the  Canada  Gazette.  R.  S., 
c.  62,  s.  18. 

CONFLICTING   CLAIMS  TO   COPYRIGHT 

21.  In  case  of  any  person  making  application  to  register 
as  his  own,  the  copyright  of  a  literary,  scientific  or  artistic 
work  already  rcgistenid  in  tlu;  name  of  another  jK^rsori, 
or  id  rase  of  simultaneous  conflicting  applications,  or  of 
ail  apjjlication  mad(>  by  any  person  other  than  the  ])erson 
entered  as  i)ro])rietor  of  a  registered  copyright,  to  cancel 


APPENDIX  819 

the  said  copyriglit,  tlie  person  so  upi)lying  shall  be  iKJtilicd 
by  the  Minister  that  the  (}uestion  is  one  for  the  decision 
of  a  court  of  competent  jurisdiction,  and  no  further  pro- 
ceedings shall  he  liad  or  taken  by  the  Minister  confcminR 
the  ai)])li('ati(>n  until  a  judgment  is  produced  maintaining, 
cancelling  or  otherwise  deciding  the  matter. 

2.  Such  registration,  cancellation  or  adjustment  of  the 
said  right  shall  then  be  made  by  the  ^linister  in  acc(jrdance 
with  such  decision. 

3.  The  Exchequer  Court  of  Canada  shall  be  a  com- 
petent court  within  the  meaning  of  this  Act,  and  shall 
have  jurisdiction  to  adjudicate  upon  any  question  arising 
under  this  section,  upon  information  in  the  name  of  the 
Attorney  General  of  Canada,  or  at  the  suit  of  any  person 
interested.  R.  S.,  c.  02,  s.  19,  53  V.,  c.  12,  s.  1;  54-55  V., 
c.  34,  s.  1. 

UNAUTHORIZED    PUBLICATION    OF   MANUSCRIPT 

22.  Ever}'  person  who,  without  the  consent  of  the 
author  or  lawful  proprietor  thereof  first  obtained,  prints 
or  pubUshes  or  causes  to  be  printed  or  published,  any 
manuscript  not  previously  printed  in  Canada  or  else- 
where, shall  be  liable  to  the  author  or  jiroprietor  for  all 
damages  occasioned  by  such  publication,  and  the  same 
shall  be  recoverable  in  any  court  of  competent  jurisdic- 
tion.   R.  S.,  c.  G2,  s.  20. 

LICENSES   TO    RE-PUBLISH 

23.  If  a  work  copyrighted  in  Canada  l)ecomes  out  of 
print,  a  complaint  may  be  lodged  by  any  jhtsou  with  the 
Minister,  who,  on  the  fact  being  ascertained  to  his  satis- 


820  APPENDIX 

faction,  shall  notify  the  owner  of  the  copjrright  of  the 
complaint  and  of  the  fact;  and  if,  within  a  reasonable 
time,  no  remedy  is  applied  by  such  owner,  the  Minister 
may  grant  a  license  to  any  person  to  pubUsh  a  new  edition 
or  to  import  the  work,  specifying  the  number  of  copies 
and  the  royalty  to  be  paid  on  each  to  the  owner  of  the 
copyright.    R.  S.,  c.  62,  s.  21. 

FEES 

24.  The  following  fees  shall  be  paid  to  the  Minister 
before  an  application  for  any  of  the  following  purposes  is 
received,  that  is  to  say: — 

Registering  a  copyright $1.00 

Registering  an  interim  copjTight ....  0.50 

Registering  a  temporary  copyright. .  .  0.50 

Registering  an  assignment 1.00 

Certified  copy  of  registration 0.50 

Registering  any  decision  of  a  court  of 

justice,  for  every  folio 0.50 

For  office  copies  of  documents  not  above  mentioned, 
the  following  charges  shall  be  made: — 

Every  single  or  first  folio  of  one  hun- 
dred words,  certified  copy $0.50 

Every  such  subsequent  folio  (fractions 
of  or  under  one-half  not  being 
counted,  and  of  one-half  or  more 
being  counted) 0.25 

2.  The  said  foes  shall  \)v.  in  full  of  all  services  i^erformed 
under  this  Act  l)y  the  Minister  or  l)y  any  person  emi)loycd 
by  him. 


APPENDIX  821 

3.  All  fees  received  under  this  Act  shall  be  paid  over 
to  the  Minister  of  Finance  and  shall  form  part  of  the 
Consolidated  Revenue  Fund  of  Canada. 

4.  No  person  shall  he  exempt  from  the  payment  of 
any  ive  or  charge  ])ayal)le  in  res])ect  of  any  services  per- 
formed under  this  Act  for  such  person,  and  no  fee  paid 
shall  l)e  returned  to  the  person  who  paid  it.  R.  S.,  c.  G2, 
s.  22. 

RIGHT  TO    REPRESENT   SCENE   OR   OBJECT 

25.  Nothing  herein  contained  shall  prejudice  the  right 
of  any  i)ersou  to  represent  any  scene  or  object,  n(jt\vith- 
standing  that  there  may  be  cop>Tight  in  sojne  other  repre- 
sentation of  such  scene  or  object.    R.  S.,  c.  62,  s.  23. 

FOREIGN   NEWSPAPERS   AND    MAGAZINES 

26.  Newspapers  and  magazines  j)ublished  in  foreign 
countries,  and  which  contain,  together  with  foreign  origi- 
nal matter,  portions  of  British  copyright  works  re])ublished 
with  the  consent  of  the  author  or  his  legal  representatives, 
or  under  the  law  of  the  country  where  such  copjTight 
exists,  may  be  imported  into  Canada.    R.  S.,  c.  62,  s.  24. 

CLERICAL   ERRORS   NOT   TO    INVALIDATE 

27.  Clerical  errors  which  occur  in  the  framing  or  copy- 
ing of  any  instrument  drawn  by  any  officer  or  emjiloyee 
ill  or  of  the  Department  shall  not  be  construed  as  in- 
validating such  instrument,  but  when  discovered  they 
may  be  corrected  under  the  authority  of  the  Minister. 
R.  S.,  c.  62,  s.  25. 


822  APPENDIX 

IMPORTATION 

28.  If  a  book  as  to  which  there  is  subsisting  copyright 
under  this  Act  has  been  first  lawfully  published  in  any 
part  of  His  Majesty's  dominions,  other  than  Canada,  and 
if  it  is  proved  to  the  satisfaction  of  the  Minister  that  the 
owner  of  the  copyright  so  subsisting  and  of  the  copyright 
acquired  by  such  publication  has  lawfully  granted  a  hcense 
to  reproduce  in  Canada,  from  movable  or  other  types, 
or  from  stereotype  plates,  or  from  electroplates,  or  from 
lithograph  stones,  or  by  any  process  for  facsimile  repro- 
duction, an  edition  or  editions  of  such  book  designed  for 
sale  only  in  Canada,  the  IMinister  may,  notwithstanding 
anything  in  this  Act,  by  order  under  his  hand,  prohibit 
the  importation  into  Canada,  except  with  the  wTitten 
consent  of  the  licensee,  of  any  copies  of  such  book  printed 
elsewhere:  Provided  that  two  such  copies  may  be  specially 
imported  for  the  bona  fide  use  of  any  public  free  library 
or  any  university  or  college  library,  or  for  the  library  of 
any  duly  incorporated  institution  or  society  for  the  use 
of  the  members  of  such  institution  or  society.  G3-64  V., 
c.  25,  s.  1. 

29.  The  Minister  may  at  any  tune  in  like  manner,  by 
order  under  his  hand,  suspend  or  revoke  such  prohibition 
upon  importation  if  it  is  proved  to  his  satisfaction  that, — 

(a)  the  license  to  reproduce  in  Canada  has  terminated 
or  expired;  or, 

{b)  the  reasonable  demand  for  the  book  in  Canada  is 
not  sufficiently  met  without  in)i)ortati()n;  or, 

(c)  the  book  is  not,  having  regard  to  the  deniand  there- 
for in  Canada,  being  suitaljly  printed  or  published;  or, 


APPENDIX  823 

(d)  any  other  state  of  things  exists  on  account  of  which 
it  is  not  in  the  public  interest  to  further  prohibit 
importation.    G3-G4  V.,  c.  25,  s.  2. 

30.  At  any  time  after  the  importation  of  a  bfjok  lias 
been  so  prohibited,  any  person  resident  or  being  in  Canada 
may  apply,  either  directly  or  through  a  book-seller  or 
other  agent,  to  the  person  so  licensed  to  reproduce  such 
book,  for  a  copy  of  any  edition  of  such  i)()()k  then  on  sale 
and  reasonably  obtainaljlc  in  the  United  Kingdom  or  any 
other  jDart  of  His  Majesty's  dominions,  and  it  shall  there- 
upon be  the  duty  of  the  person  so  licensed,  as  soon  as 
reasonably  may  be,  to  import  and  sell  such  copy  to  the 
person  so  applying  therefor,  at  the  ordinary'  selling  price 
of  such  copy  in  the  United  Kingdom,  or  such  other  part 
of  His  ^lajesty's  dominions,  with  tlie  duty  and  reasonable 
forw^arding  charges  added. 

2.  The  failure  or  neglect,  without  la^^'ful  excuse,  of  the 
person  so  licensed  to  supply  such  copy  within  a  reasonable 
time  shall  be  a  reason  for  which  the  Minister  may,  if  he 
sees  fit,  suspend  or  revoke  the  prohibition  upon  importa- 
tion.   03-04  v.,  c.  25,  s.  3. 

31.  The  ^Minister  shall  forthwith  inform  the  Depart- 
ment of  Customs  of  any  order  made  by  him  under  this 
Act.    63-64  v.,  c.  25,  s.  4. 

EVIDENCE 

32.  All  copies  or  extracts  certified  from  the  Depart- 
ment shall  be  received  in  evidence  without  further  j^roof 
and  without  jiroduction  of  the  originals.    R.  S.,  c.  62,  s.  26. 

33.  All    documents,    executed    and    accei)ted    by    the 


824  APPENDIX 

Minister  shall  be  held  vaUd,  so  far  as  relates  to  official 
proceedings  under  this  Act.    R.  S.,  c.  62,  s.  27. 

RULES   AND   REGULATIONS 

34.  The  Minister  may,  from  time  to  time,  subject  to 
the  approval  of  the  Governor  in  Council,  make  such  rules 
and  regulations,  and  prescribe  such  forms  as  appear  to 
him  necessary  and  expedient  for  the  purposes  of  this  Act; 
and  such  regulations  and  forms,  circulated  in  print  for 
the  use  of  the  public,  shall  be  deemed  to  be  correct  for 
the  purposes  of  this  Act.    R.  S.,  c.  62,  s.  27. 

OFFENCES   AND   PENALTIES 

35.  Every  person  who  wilfully  makes  or  causes  to  be 
made  any  false  entry  in  any  of  the  registry  books,  herem- 
before  mentioned,  or  who  wilfully  produces  or  causes 
to  be  tendered  in  evidence,  any  paper  which  falsely  pur- 
ports to  be  a  copy  of  an  entry  in  any  of  the  said  books, 
is  guilty  of  an  indictable  offence,  and  shall  be  punished 
accordingly.    R.  S.,  c.  62,  s.  28. 

36.  Every  person  who  fraudulently  assumes  authority 
to  act  as  agent  of  the  author,  or  of  his  legal  representative, 
for  the  registration  of  a  copyright,  or  of  a  temporary 
or  of  an  interim  copyright,  is  guilty  of  an  indictable  of- 
fence and  shall  be  punished  accordingly.  R.  S.,  c.  62, 
s.  29. 

37.  Every  person  who, — 

(a)  after  the  interim  registration  of  the  title  of  any 
])ook  arcordiiig  to  this  Act,  and  within  the  term  heroin 
limited,  or  after  the  copyright  is  secured  and  (hu'ing 
the  term  or  terms  of  its  duration,  prints,  pubUslies, 


APPENDIX  82r) 

or  reprints  or  ropublishcs,  or  imports,  or  causes  to  J)e 
so  printed,  j)ublished  or  imported,  any  copy  or  any 
translation   of  such   book   without   having  first   ob- 
tained the  right  so  to  do  by  assignment  from  the 
person  lawfully  entitled  to  the  copyright  thereof;  or, 
(6)  knowing  the  same  to  be  so  printed  or  imported, 
publishes,  sells  or  exposes  for  sale,  or  causes  to  be 
pui)lished,  sold  or  exposed  for  sale,  any  copy  of  such 
book  without  such  consent; 
shall  forfeit  ever}^  copy  of  such  book  to  the  person  then 
lawfully  entitled  to  the  copyright  thereof;  and  shall  for- 
feit and  pay  for  every  such  copy  which  is  found  in  his 
possession,   either  printed   or  being  printed,   published, 
imjiorted  or  exposed  for  sale,  contrary'  to  the  j)rovisions 
of  this  Act,  such  sum,  not  exceeding  one  dollar,  and  not 
less  than  ten  cents,  as  the  court  determines,  which  for- 
feiture shall  l)e  enforceable  or  recoverable  in  any  court 
of  competent  jurisdiction. 

2.  A  moiety  of  such  sum  shall  belong  to  His  Majesty 
for  the  public  uses  of  Canada,  and  the  other  moiety  shall 
belong  to  the  lawful  owner  of  such  cop}Tight.  R.  S.,  c.  G2, 
s.  30. 

38.  Every  person  who,  after  the  registering  of  any 
painting,  drawing,  statue  or  other  work  of  art,  and  within 
the  term  or  terms  limited  by  this  Act,  reproduces  in  any 
manner,  or  causes  to  be  re])roduce(,l,  made  or  sold,  in 
whole  or  in  i)art .  any  copy  of  any  such  work  of  art,  williout 
the  consent  of  the  proprietor  shall  forfeit  the  i)late  or 
plates  on  which  such  reproduction  has  been  made,  and 
every  sheet  thereof  so  re])roduced,  to  the  proprietor  of 
the  coi)yright   theret)f;  and  shall  also  forfeit   for  every 


826  APPENDIX 

sheet  of  such  reproduction  published  or  exposed  for  sale, 
contrary  to  this  Act,  such  sum,  not  exceeding  one  dollar 
and  not  less  than  ten  cents,  as  the  court  determines,  which 
forfeiture  shall  be  enforceable  or  recoverable  in  any  court 
of  competent  jurisdiction. 

2.  A  moiety  of  such  sum  shall  belong  to  His  Majesty 
for  the  pubhc  uses  of  Canada,  and  the  other  moiety  shall 
belong  to  the  lawful  owner  of  such  copyright.  R.  S.,  c.  62, 
s.  31. 

39.  Every  person  who,  mthout  the  consent  of  the 
proprietor  of  the  copjTight  first  obtained, — 

(a)  after  the  registering  of  any  print,  cut  or  engraving, 
map,  chart,  musical  composition  or  photograph, 
according  to  the  provisions  of  this  Act,  and  within 
the  term  or  terms  hmited  by  this  Act,  engraves, 
etches  or  works,  sells  or  copies,  or  causes  to  be  en- 
graved, etched  or  copied,  made  or  sold  any  such 
print,  cut  or  engraving,  map,  chart,  musical  com- 
position or  photograph,  or  any  part  thereof,  either  as 
a  whole  or  by  var>'ing,  adding  to  or  diminishing  the 
main  design  with  intent  to  evade  the  law;  or, 
(6)  prints  or  reprints  or  imports  for  sale,  or  causes  to 
be  so  printed  or  reprinted  or  imi)orted  for  sale,  any 
such  map,  chart,  musical  composition,  print,  cut  or 
engraving,  or  any  part  thereof;  or, 
(c)  knowing  the  same  to  be  so  reprinted,  printed  or 
imported  without  such  consent,  ])ul)lishes,  sells  or 
exposes  for  sale,  or  in  any  manner  disposes  of  any 
such  map,  chart,  musical  composition,  engraving,  cut, 
photograph,  or  print; 
shall  forfeit  the  plate  or  plates  on  which  such  map,  chart, 


APPENDIX  827 

musical  composition,  engraving,  cut,  photograph  or  i)rint 
lias  \)vvu  coijicd,  und  also  every  sheet  thereof,  so  copied 
or  i)riiit('d  as  aforesaid,  to  the  proprietor  of  the  c()p>Tight 
thereof;  and  shall  also  forfeit,  for  ever>'  sheet  oi  such 
map,  musical  com])osition,  jirint,  cut  or  engraving  found 
in  his  possession,  ])rinted  or  jnihlished  or  ex])osed  for  sale, 
contrary'  to  this  Act,  such  sun),  not  exceeding  one  dollar 
and  not  less  than  ten  cents,  as  the  court  determines, 
which  forfeiture  shall  be  enforceable  or  recoverable  in 
any  court  of  com])etcnt  jurisdiction. 

2.  A  moiety  of  such  sum  shall  belong  to  His  Majesty 
for  the  public  uses  of  Canada,  and  the  other  moiety  shall 
belong  to  the  lawful  owner  of  such  copyright.  R.  S.,  c.  G2, 
s.  32. 

40.  Every  person  who  has  not  lawfully  accjuired  the 
copyright  of  a  literary,  scientific  or  artistic  work,  and 
who  inserts  in  any  copy  thereof  jirinted,  jiroduced,  re})ro- 
duced  or  unportcd,  or  who  imi)resscs  on  any  such  copy, 
that  the  same  has  been  entered  according  to  this  Act, 
or  words  purporting  to  assert  the  existence  of  a  Canatlian 
copyright  in  relation  thereto,  shall  incur  a  penalty  not 
exceeding  tlu*ee  hundred  dollars.    R.  S.,  c.  G2,  s.  33. 

41.  Every  person  who  causes  any  work  to  be  registered 
in  the  register  of  interim  copyright  and  fails  to  print  and 
l)ul)lish,  or  reprint  anil  republish  the  .same  within  the 
time  ])rescril)ed,  shall  incur  a  penalty  not  exceeding  one 
hundred  dollars.    R.  S.,  c.  (32,  s.  33. 

42.  Every  penalty  incurred  under  either  of  the  last 
two  preceding  sections  shall  be  recoverable  in  any  court 
of  competent  jurisdiction. 

2.  A  moiety  of  any  such  penalty  shall  belong  to  His 


828  APPENDIX 

Majesty  for  the  public  uses  of  Canada,  and  the  other 
moiety  shall  belong  to  the  person  who  sues  for  the  same. 
R.  S.,  c.  62,  s.  33. 

43.  All  books  imported  in  contravention  of  any  order, 
prohibiting  such  importation,  made  under  the  hand  of 
the  Minister;  by  the  authority  of  this  Act,  may  be  seized 
by  any  officer  of  Customs,  and  shall  be  forfeited  to  the 
Crown  and  destroyed;  and  any  person  importmg,  or 
causing  or  permitting  the  importation  of  any  book  in 
contravention  of  such  order  shall,  for  each  offence,  be 
hable,  upon  summary  conviction,  to  a  penalty  not  ex- 
ceeding one  hundred  dollars.    63-64  V.,  c.  25,  s.  5. 

44.  No  action  or  prosecution  for  the  recovery  of  any 
penalty  under  this  Act,  shall  be  commenced  more  than 
two  years  after  the  cause  of  action  arises.  R.  S.,  c.  62, 
s.  34. 

Part  II 
APPLICATION 

45.  This  Part  shall  come  into  force  on  a  day  to  be 
named  by  proclamation  of  the  Governor  General.  52  V., 
c.  29,  s.  7. 

46.  Nothing  in  this  Part  contained  shall  be  deemed  to, — 

(a)  prohibit  the  importation  from  the  United  Kingdom 
of  copies  of  works  of  which  the  copyright  is  there 
existing  and  wliich  are  lawfully  i)rinted  and  pub- 
lished there;  or, 

(b)  except  as  in  this  Part  otherwise  expressly  provided, 
apply  to  any  work  for  which,  before  the  ctmiing  into 
force  of  this  Part,  copyright  had  been  obtained  in 


APPENDIX  829 

the  United  Kingdom,  or  in  any  country  which  has 
an  international  copyright  treaty  with  the  United 
Kingdom,  in  which  Canada  is  included. 
2.  The  law  in  force  at  the  time  of  the  coming  into  effect 

of  this  Part  shall  be  deemed  to  continue  in  force  as  respects 

such  works.    52  V.,  c.  29,  s.  6. 

REPEAL 

47.  Sections  four,  five,  six  and  eight  of  Part  I.  of  this 
Act  are  repealed.    52  V.,  c.  29,  ss.  1  and  2. 

SUBJECTS   AND    CONDITIONS   OF   COPYRIGHT 

48.  Any  person  domiciled  in  Canada  or  in  any  part  of 
the  British  possessions,  or  any  citizen  of  any  country 
which  has  an  international  copyright  treaty  with  the 
United  Kingdom,  in  which  Canada  is  included,  who  is 
the  author  of  any  book,  map,  chart  or  musical  or  literary 
composition,  or  of  any  original  painting,  drawing,  statue, 
8cul])tiu"e  or  photograph,  or  who  invents,  designs,  etches, 
engraves  or  causes  to  be  engi-aved,  etched  or  made  from 
his  own  design,  any  print  or  engraving,  and  the  legal 
representatives  of  such  i)ers()n  or  citizen,  shall,  for  the 
tenn  of  twenty-eight  years  from  the  time  of  recording  the 
copyright  thereof,  have  the  sole  and  exclusive  right  and 
liberty  of  printing,  reprinting,  publishing,  reproducing 
and  vending  such  literary,  scientific,  musical  or  artistic 
work  or  composition,  in  whole  or  in  part,  and  of  allowing 
translations  of  such  hterary  work,  from  one  language 
into  other  languages,  to  be  printed  or  reprinted  and  sold 
in  the  manner  and  on  the  conditions,  and  subject  to  the 
restrictions  hereinafter  set  forth.    52  V.,  c.  29,  s.  1. 


830  APPENDIX 

49.  The  conditions  for  obtaining  such  copyright  shall 
be  that  the  said  hterary,  scientific,  musical  or  artistic 
work  shall,  before  pubhcation  or  production  elsewhere, 
or  simultaneously  with  the  first  pubhcation  or  production 
thereof  elsewhere,  be  registered  in  the  office  of  the  Minis- 
ter, by  the  author  or  his  legal  representative,  and  further 
that  such  work  shall  be  printed  and  pubhshed  or  pro- 
duced in  Canada,  or  reprinted  and  republished  or  repro- 
duced in  Canada,  within  one  month  after  pubhcation  or 
production  elsewhere.    52  V.,  c.  29,  s.  1. 

50.  In  no  case  shall  the  sole  and  exclusive  right  and 
privilege  in  Canada  continue  to  exist  after  it  has  exphed 
in  the  country  of  origin.    52  V.,  c.  29,  s  1. 

LICENSES 

51.  If  any  person  entitled  to  copyright  of  a  work  under 
this  Act, — 

(a)  neglects  or  fails  to  take  advantage  of  its  provisions; 

or, 
(6)  having  obtained  copyright  thereunder,  at  any  time 
after  the  first  publication  in  Canada  of  the  work  for 
which  copjTight  has  been  so  obtained,  fails  to  j^rint 
and  publish  the  work  in  Canada  in  sufficient  numbers 
and  in  such  manner  as  to  meet  the  demand  in  Canada 
for  such  work; 
the  Minister  may  grant  a  Ucense  or  licenses  to  any  person 
or  persons  domiciled  in  Canada  to  print  and  i)ul)lish  or  to 
reproduce  such  work   in   Canada,   but  no  such   license 
shall  convey  any  exclusive  right  to  print  and  pubhsh  or 
reproduce  any  work. 
2.  A  license  shall  be  granted  to  any  applicant  agreeing 


APPENDIX  831 

to  pay  the  author  or  his  Icsal  rcijre.sentati\'es  a  royalty 
of  ten  per  centum  on  the  retail  price  of  each  copy  or  re- 
])nHluction  issued  of  the  work  which  is  the  subject  of  the 
license,  and  si\inp;  security  for  such  payment  to  the 
satisfaction  of  tlie  Minister.  o2  V.,  c.  29,  s.  3;  58-59  V., 
c.  37,  s.  3. 

52.  As  to  any  work  for  which  copyright  has  been  ol)- 
tained  in  Canada,  the  Governor  in  Council  may,  upon 
its  being  established  to  his  satisfaction  that  the  holder 
of  such  copyright  is  prepared  and  bona  fide  intends,  during 
the  remaining  period  of  his  term  of  copji'ight,  to  print 
and  ])uhlish  such  work  in  Canada  in  sufficient  numbers 
and  in  such  manner  as  to  supply  the  demand  for  such 
work  in  Canada,  revoke  all  licenses  for  the  printuig  and 
pubhcation  of  such  work  then  in  force. 

2.  Such  revocation  shall  not  render  unla\\'ful  the  sub- 
sequent sale  and  disposal  in  Canada  of  all  or  any  of  the 
copies  of  such  work  then  j^rinted  under  the  authority 
of  the  license  so  revoked.    58-59  \'.,  c.  37,  s.  5. 

53.  The  royalty  in  this  Part  provided  for  shall  be 
collected  by  the  officers  of  the  Department  of  Inland 
Revenue,  and  paid  over  to  the  persons  entitled  thereto, 
under  regulations  appro\'ed  by  the  Clovemor  in  Council; 
but  the  Government  shall  not  l)e  liable  to  account  for 
any  such  royalty  not  actually  collected.    52  V.,  c.  29,  s.  4. 

54.  \\lienever,  under  the  foregoing  provisions  of  this 
Part,  a  license  has  been  issued  i)ermitting  the  printing 
and  pubUshing  or  the  producing  of  any  work,  and  evidence 
has  l)een  adduced  to  the  satisfaction  of  the  Governor  in 
Council  that  such  work  is  in  course  of  being  jirinted  and 
pubhshed  or  produced  in  such  manner  as  to  meet  the 


832  '      APPENDIX 

demand  therefor  in  Canada,  the  Governor  General  may, 
by  proclamation  published  in  the  Canada  Gazette,  pro- 
hibit the  importation,  while  the  author's  copyright  or 
that  of  his  assigns  is  in  force,  or  would  have  been  in  force 
had  copyright  for  the  work  been  obtained  in  Canada 
under  the  foregoing  provisions  of  this  Part,  of  any  copies 
or  reproductions  of  the  work  to  which  such  license  relates. 
2.  If,  at  any  time  thereafter,  it  is  made  to  appear  to 
the  Governor  in  Council  that  such  work  is  not,  under  such 
license,  printed  and  pubUshed  or  produced  in  such  manner 
as  to  meet  such  demand,  the  Governor  General  may,  by 
proclamation  published  as  aforesaid,  revoke  such  pro- 
hibition.   52  v.,  c.  29,  s.  5;  58-59  V.,  c.  37,  s.  4. 


RULES  OF  THE 
CANADIAN  DEPARTMENT  OF  AGRICULTURE 

UNDER 

THE  COPYRIGHT  ACT 

Approved  by  the  Governor  in  Council,  on  the  3rd  day  of 
December,  1907 

RULES 
I 

There  is  no  necessity  for  any  personal  appearance  at 
the  Department  of  Agriculture,  unless  specially  called 
for  by  order  of  the  ^Minister  or  the  Deputy,  everj'  trans- 
action being  carried  on  by  writing. 

II 

In  every  case  the  applicant  or  depositor  of  any  paper  is 
responsible  for  the  merits  of  his  allegations  and  for  the 
\alidity  of  the  instruments  furnished  by  him  or  his  agent. 

Ill 

The  correspondence  is  carried  on  with  the  apjilicant 
or  his  agent,  but  with  one  person  only,  and  will  be  con- 
veyed tlirough  the  Canadian  mails  free  of  charge. 

833 


834         .  APPENDIX 


IV 


All  papers  are  to  be  clearly  and  neatly  written  on  fools- 
cap paper,  and  every  word  of  them  is  to  be  distinctly 
legible. 

All  copies  of  books  deposited  shall  be  bound  in  boards, 
and  all  copies  of  maps  and  photographs  shall  be  mounted. 


An  application  for  registration  shall  be  signed  by  the 
applicant  or  by  an  agent  duly  authorized. 

A  partner  may  sign  for  a  firm.  A  director  or  secretary 
or  other  principal  officer  of  a  company  may  sign  for  the 
company. 

VI 

All  communications  to  be  addressed  in  the  following 
words: — To  the  Minister  of  Agriculture,  (Trade-Mark 
and  Copyright  Branch),  Ottawa. 

VII 

As  regards  proceedings  not  specially  provided  for  in  the 
following  forms,  any  form  being  conformable  to  the  letter 
and  spirit  of  the  law  will  be  accepted,  and  if  not  so  con- 
formable will  be  returned  for  correction. 

VIII 

A  copy  of  the  Act  and  the  Rules  with  a  particular  sec- 
tion marked,  sent  to  any  person  making  an  incjuiry,  is 
intended  as  a  respectful  answer  by  the  office. 


APPENDIX  835 

IX 

Information  as  to  subsisting  registrations  will  not  be 
furnished  by  the  office,  the  registers  and  indexes  being 
open  for  inspection  free  of  charge. 


CONVENTION  CREATING  THE  INTERNATIONAL 
COPYRIGHT  UNION.    REVISED  TEXT,  1908 

PRELIMINARY   REMARKS 

The  Berne  Convention  creating  the  International 
Copyright  Union  for  the  protection  of  works  of  Hterature 
and  art  was  signed  on  September  9,  1886,  and  went  into 
force  on  December  5,  1887.  The  Additional  Agreement 
formulated  at  the  first  conference  of  revision,  which  met 
in  Paris,  was  signed  on  May  4,  1896,  and  went  into  effect 
on  December  9,  1897.  This  modified  Articles  2,  3,  5,  7,  12, 
and  20  of  the  Convention,  and  Numbers  1  and  4  of  the 
"Protocole  de  Cloture."  A  declaration  interpreting  cer- 
tain provisions  of  the  Berne  Convention  of  1886  and  the 
Additional  Agreement  of  Paris  of  1896  was  also  signed  on 
May  4,  1896,  to  go  into  effect  on  September  9,  1897. 

A  second  conference  of  revision  was  held  in  Berlin  from 
October  14  to  November  14,  1908,  and  a  new  text  to  take 
the  place  of  the  three  documents  cited  above  was  form- 
ulated by  the  representatives  of  the  following  fifteen  coun- 
tries: Belgium,  Denmark,  France,  Germany,  Great  Britain, 
Italy,  Japan,  Lil)eria,  Luxembourg,  Monaco,  Norway, 
Spain,  Sweden,  Switzerland,  and  Tunis. 

Representatives  from  the  following  non-Union  coun- 
tries were  also  present  at  the  conference:  Argentina,  Chile, 
China,  CV)l()ni})i;i,  ]']cuador,  Greece,  Guatemala,  Mexico, 
the  Netherhinds  (Holland),  Nicaragua,  Peru,  Persia, 
836 


APPENDIX  837 

Portugal,    Rumania,   Russia,   Siam,    the   United   States, 
Uruguay,  and  X'enczuela. 

The  representative  from  the  United  States  was  present 
only  to  "observe  and  report,"  with  no  power  to  take  part 
in  the  disrussions,  and,  beyond  making  a  statement  to 
that  efTec't,  took  no  i)art  in  the  proceedings  of  the  Con- 
4'erence.  Mr.  Arthur  Orr,  Third  Secretary  of  the  United 
States  Embassy  at  Berlin,  was  also  present  at  the  sittings 
of  the  Conference  but  took  no  part  in  the  proceedings. 

The  Convention  was  signed  on  November  13th  and  the 
Conference  closed  on  November  14th.  To  give  publicity 
to  the  i)roi)osed  treaty  the  official  text  was,  by  resolution 
of  the  Conference,  published  in  the  organ  of  the  Inter- 
national Copyright  Bureau  at  Berne,  "  Le  Droit  d'Auteur," 
for  November  15th.  This  is  the  French  text  of  the  treaty 
])rinted  below. 

The  I^nglish  translation  here  printed  is  made  from  the 
text  as  published  in  "Le  Droit  d'Auteur."  Where  doubt 
has  been  felt  as  to  the  best  English  e(iuivalent,  the  words 
of  the  French  text  have  been  added,  and  the  full  official 
text  in  French  follows  the  English  text. 

Article  28  of  the  Convention  provides  that  it  shall  be 
ratified,  and  the  ratifications  exchanged  at  Berlin,  not 
later  than  the  first  of  July,  1910. 

Thorvald  Solberg, 
Register  of  Copyrights. 

Statement  by  Thon-ald  Solhorp,  Refiistor  of  CopyriRlit-s,  Delegate  of 
the  United  States  to  the  Berlin  Conference  to  Revise  the  Berne 
International  ("oi)yri«lit  ( "onvention,  October  1.'),  I',t08. 

In  188.")  and  18S0,  at  tlie  conferences  convened  to  draft  the  con- 
vention to  create  the  International  Union  for  the  protection  of  Uterary 


838  APPENDIX 

and  artistic  property,  the  United  States  was  represented.  At  that 
time,  however,  it  was  not  deemed  possible  to  send  a  plenipotentiary 
delegate,  nor  could  such  a  representative  be  sent  to  attend  the  first 
Conference  of  revision,  which  met  in  Paris  in  1896. 

When  the  present  Conference  was  arranged  for — early  in  this  year — 
the  German  Ambassador  at  Washington  wrote  to  the  Secretary  of 
State  of  the  United  States  a  letter  explaining  the  purpose  and  scope  of 
this  Congress,  inviting  the  Government  of  the  United  States  to  send 
delegates.  The  Ambassador's  letter  explained  that,  in  addition  to 
delegates  representing  Governments  in  the  Union,  there  would  be 
present  representatives  from  a  considerable  number  of  non-Union 
nations.  It  was  further  stated  that  the  attendance  of  such  delegates 
from  non-Union  countries  would  be  greeted  with  special  pleasure. 
This  because  of  the  conviction  that  whatever  might  be  the  final  posi- 
tion taken  by  the  non-Union  countries,  or  their  laws,  in  relation  to 
copyright,  the  participation  in  the  proceedings  of  this  Conference  by 
such  delegates  from  non-Union  countries  would  at  all  events  contrib- 
ute to  arouse  and  increase  interest  in  the  Berne  Union  and  its  bene- 
ficial work. 

The  German  Ambassador's  letter  further  explained  that  the  dele- 
gates from  non-Union  countries  attending  the  Conference  would  have 
full  freedom  of  action ;  that  they  might  confine  themselves  to  following 
the  discussions  without  taking  any  stand  with  regard  to  them,  and  that 
it  would  be  left  to  the  discretion  of  the  non-Union  Governments  as  to 
whether  they  would  empower  their  delegates  to  join  the  Berne  Union. 

The  Government  of  the  United  States  again  finds  it  imjiracticable  to 
send  a  delegate  authorized  to  commit  the  United  States  to  actual 
adhesion  at  this  time  to  the  Berne  Convention.  Nevertheless,  it  has 
been  felt  that  the  representation  of  the  United  States,  ev(>n  within  the 
limitations  indicated,  might  be  beneficial:  first,  to  indicate  the  sym- 
pathy of  our  Government  with  the  general  purposes  of  the  Interna- 
tional C^opyright  Union:  second,  to  secure  such  informatio!!  regarding 
tiie  i)ro('eedings  of  the  Conference  as  might  jirovc  valuable;  and  third, 
to  place  (by  means  of  such  representation)  at  the  disposal  of  tlie 
Conference,  authoritative  knowledge  as  to  the  facts  of  copyright  legis- 
lation and  procedure  within  the  United  States— information  which  it  is 


APPENDIX  830 

hoped  may  be  of  use  to  the  members  of  the  Conference  in  their  delibera- 
tions. 

The  Secretary'  of  State  of  the  United  States  ha.s  done  me  the  honor  to 
designate  me  to  attend  this  Conference  as  a  delegate  on  the  part  of 
the  United  States. 

It  is  with  the  sincere  desire  that  my  attendance  here  maj'  contribute 
in  some  degree  to  the  attainment  of  each  of  these  three  objects,  that  I 
have  crossed  the  ocean  to  be  present.  I  trust,  also,  that  this  loii^ 
journey  taken  for  the  purpose  of  being  present  here  may  be  held  to 
testify  to  my  personal  most  sincere  interest  in,  and  admiration  for,  the 
objects  of  the  Berne  Union — that  admirable  association  of  many  na- 
tions to  secure  adequate  protection  for  literary  and  artistic  produc- 
tions. 

It  will  be  for  me  a  great  pleasure  if  mj'  attendance  here  can  be  of 
service  to  the  Conference,  or  to  any  of  its  members. 

Some  of  the  questions  to  be  discussed  here  are  now  pending  before 
the  Congress  of  the  United  States  in  the  Copyright  Bill  now  under 
discussion.  I  should  wish  to  avoid,  therefore,  taking  any  position  in 
regard  to  the  special  matters  in  question — any  jwsition  which  might 
tend  to  commit  the  United  States  in  advance  to  any  line  of  policy 
which  might  embarra.ss  the  legislative  branch  of  the  Government  of 
the  United  States  in  taking  such  action  regarding  these  matters  as  it 
may  finally  deem  advisable.  But  within  that  limitation — with  the 
most  hearty  and  cordial  expression  of  my  sympathy  for  the  ends  and 
purposes  of  the  Berne  Union — I  beg  to  place  myself  at  the  serv'ice  of 
the  Conference. 


CONVENTION  CREATING  AN  INTERNATIONAL 
UNION  FOR  THE  PROTECTION  OF  LITERARY 
AND  ARTISTIC  WORKS,  SIGNED  AT  BERLIN, 
NOVEMBER  13,  1908 

Article  1 
Union  to  pro-      The  Contracting  countries  are  constituted 

*^1  If  ^' wkr"*  ^^^^  ^  ^^^^  ^^^  ^^^  protection  of  the  rights 
of  authors  in  their  Uterary  and  artistic 
works. 

Article  2 

Definition   of      The     expression    "hterary    and     artistic 
"literary     and  ^Qj.j,gj»    includes    all    productions    in    the 
artistic  wor  s.     j-^gj,^j.y^  scientific  or  artistic  domain,  what- 
ever   the   mode    or   form    of   reproduction, 
such  as:  books,  pamphlets  and  other  writings; 
dramatic  or  dramatico-musical  works;  chore- 
ographic works  and  pantomimes,  the  stage 
directions   {"mise  en  scene")   of  which  are 
fixed  in  writing  or  otherwise;  musical  com- 
positions with  or  without  words;  drawings, 
paintings;  works  of  architecture  and  sculp- 
ture;  engravings   and   lithographs;   illustra- 
tions; geographical  charts;     plans,  sketches 
and    plastic    works   relating   to    geography, 
topography,    architecture,    or    the    sciences. 
Translations,  adaptations,  arrangements  of 
840  t 


APPENDIX  841 

miisir  and  other  roprodurtions  tranRformed     Translations, 
from  a  litorary  or  artistic  work,  as  well  as  ^7/;;^f3"|''„3 
pompilations  from  different  works,  are  pro-  protected, 
teeted  as  original  works  without  j)rejudice  to 
the  rights  of  the  author  of  the  original  work. 

The  contracting  countries  are  pledged  to 
secure  protection  in  the  case  of  the  works 
mentioned  above. 

Works  of  art  applied  to  industry  are  Works  of  art 
protected  so  far  as  the  domestic  legislation  of  applied  to  in- 
each  country  allows. 


Article  3 
The  present  Convention  applies  to  photo-     Photographic 
grai)hic  works  and  to  works  obtained  by  any  ^^J^^  °  ^  ^^^ 
process  analogous  to  photography.    The  con- 
tracting countries  are  pledged  to  guarantee 
protection  to  such  works. 

Article  4 

Authors    within    the   jurisdiction    of   one     Authors      to 
of  the  countries  of  the  Union  enjoy  for  their  ^°^^y  ^^  <^°'^- 
works,    whether    uni)ublished    or    published  y^j^j^  ^^  eights 
for  the  first  time  in  one  of  the  countries  of  the  granted  to  na- 
Union,   such   rights,   in   the   countries  other  ^'^^s. 
than  the  country  of  origin  of  the  work,  as 
the    respective    laws    now    accord    or    shall 
hereafter  accord  to  natives,  as  well  as  the 
rights    specially    accorded    by    the    present 
Convention. 


842  APPENDIX 

No  formalities      The  enjoyment  and  the  exercise  of  such 
required.  rights  are  not  subject  to  any  formaUty;  such 

enjoyment  and  such  exercise  are  independent 
of  the  existence  of  protection  in  the  country 
of  origin  of  the  work.  Consequently,  apart 
from  the  stipulations  of  the  present  Con- 
vention, the  extent  of  the  protection,  as 
well  as  the  means  of  redress  guaranteed  to 
the  author  to  safeguard  his  rights,  are 
regulated  exclusively  according  to  the  legisla- 
tion of  the  country  where  the  protection  is 
claimed. 
Definition  of  The  following  is  considered  as  the  country 
country  of  on-  ^^  origin  of  the  work :  for  unpublished  works, 
the  country  to  which  the  author  belongs;  for 
published  works,  the  country  of  first  publica- 
tion, and  for  works  published  simultaneously 
in  several  countries  of  the  Union,  the  coun- 
try among  them  whose  legislation  grants  the 
shortest  term  of  protection.  For  works  pub- 
lished simultaneously  in  a  country  outside 
of  the  Union  and  in  a  country  within  the 
Union,  it  is  the  latter  country  which  is  ex- 
clusively considered  as  the  country  of  origin. 
Published  By  published  works  {"oeuvrcs  publices") 
works.  must  be  understood,  according  to  the  present 

Convention,  works  which  have  been  issued 
{"(Buvres  ediiees").  The  representation  of  a 
dramatic  or  dramatico-musical  work,  the 
performance  of  a  musical  work,  the  exhibi- 
tion of  a  work  of  art  and  the  construction  of  a 


APPENDIX  843 

work  of  architecture  do  not  constitute  pub- 
lication. 

Article  5 

Authors  within  the  jurisdiction  of  one  Authors  of 
of  the  countries  of  the  Union  who  puhHsh  countries  of  the 
their  works  for  the  first  time  in  another  ^^^^  ^.j^j^^^  ^^ 
country  of  the  Union,  have  in  this  latter  natives  of  other 
country  the  same  rights  as  national  authors,  countries. 

Article  6 
Authors  not  within  the  jurisdiction  of  any     Authors    not 
one  of  the  countries  of  the  Union,  who  i)ub-    ^  °"6'ng       to 

'.  '  countries  of  the 

lish  for  tlie  first  time  their  works  in  one  of  union  also  pro- 
these  countries,  enjoy  in  that  country  the  tected  if  they 
same  rights  as  national  authors,  and  in  the  f/^^  p"^"^^  ^  * 

.  -     ,       T-T    .  ,         .    ,  Union  country. 

other  countries  of  the  Union  the  rights  ac- 
corded by  the  present  Convention. 

Article  7 

The  term  of  ])rotection  granted  by  the  Term  of  pro- 
present  (\)nventi()n  comprises  the  life  of  the  tection:  Life  and 

.  50  years. 

author  and  fifty  years  after  his  death. 

In  case  this  term,  however,  shoukl  not  be     if  not 

adopted  uniformly  by  all  the  countries  of  adopted;  Laws 
the  Union,  the  duration  of  the  protection  governTerai. 
shall  be  regulated  I)y  the  law  of  the  country 
where  protection  is  claimed,  and  can  not 
exceed  the  term  granted  in  the  country  of 
origin  of  the  work.  The  contracting  coun- 
tries will  consequently  be  required  to  apply 


844  APPKNDIX 

the  provision   of   the  preceding  paragraph 

only  to  the  extent  to  which  it  agrees  with 

their  domestic  law. 

Tennforpho-      For  photographic   works  and  works  ob- 

tographic,  post-  tained  by  a  process  analogous  to  photogra- 

humous,    anon-     ,         /.  , ,  i        c 

ymous  or  pseu-  P^^'  ^^^  posthumous  works,  lor  anonymous 

donymous    or  pseudonymous  works,  the  term  of  protec- 

works.  i[q^  jg  regulated  by  the  law  of  the  country 

where  protection  is  claimed,  but  this  term 

may  not  exceed  the  term  fixed  in  the  country 

of  origin  of  the  work. 

Article  8 

Exclusive      Authors  of  unpublished  works  within  the 
right  of  trans-  jurisdiction  of  one  of  the  countries  of  the 

lation  for  entire  t,    .  -  i  t  i      i  c 

term.  Union,  and  authors  of  works  published  for  the 

first  time  in  one  of  these  countries,  enjoy  in 
the  other  countries  of  the  Union  during  the 
whole  term  of  the  right  in  the  original  work 
the  exclusive  right  to  make  or  to  authorize 
the  translation  of  their  works. 

Article  9 

Serial  novels      Serial  stories  {"romans-feuilletons''),  nov- 
protected  when  ^j^   ^^^^   j^||   ^^^j^^j,   ^^^j,^    whether   literary, 

published     in  ■        ■,.  •     •  ,  i         i     • 

newspapers    or  scientific  or  artistic,  whatever  may  be  their 
periodicals.         suljject,  published  in  newspapers  or  period- 
icals of  one  of  the  countries  of  the  Union, 
may  not  be  reproduced  in  the  other  coun- 
tries  without   the   consent   of   the   authors. 


APPENDIX  845 

With  the  exception  of  serial  stories  and  of  Reproduction 
novels  C^romans-feuilletons  et  des  nouvelles")  °_,.  ^^'^^p^p^^ 

-1  I  111       articles. 

any  newspaper  article  may  be  reproduced  by 
another  newspaper  if  reproduction  has  not 
been  expressly  forbidden.  The  source,  how- 
ever, must  be  indicated.  The  confirmation 
of  this  obligation  shall  be  determined  by 
the  legislation  of  the  country  where  protec- 
tion is  claimed. 

The  protection  of  the  present  Convention     News  items 
does  not  apply  to  news  of  the  day  or  to  mis-  °°^  protected, 
cellaneous  news  having  the  character  merely 
of  press  information. 

Article  10 

As  concerns  the  right  of  borrowing  law-  Extracts  from 
fully  from  literary  or  artistic  works  for  use  literary  or  artis- 
in  publications  intended  for  instruction  or    ^    ^^"^  ^,     ?_^ 

'^  educational  pub- 

having  a  scientific  character,  or  for  chresto-  ucations. 
mathies,  the  provisions  of  the  legislation  of 
the  countries  of  the  Union  and  of  the  special 
treaties  existing  or  to  be  concluded  between 
them  shall  govern. 

Article  11 

The  stipulations  of  the  present  Conven-     Representa- 
tion apply  to  the  public  representation  of  ^*^°  °^  dramatic 

,  .  ,  ^ .  .      ,  ,  ,  or    dramatico- 

draniatic    or    dramatico-nuisical    works    and  musical 
to  the  public  performance  of  musical  works,  works, 
whether  these  works  are  published  or  not. 


846  APPENDIX 

Representa-        Authors  of  dramatic  or  dramatico-musical 
tion  of  transia-  ^^^^^   ^^^   protected,    during   the    term   of 

tions  of  drama-         ,  .,.'.., 

tic  works.  their  copyright  in  the  original  work,  against 

the  unauthorized  pubhc  representation  of  a 
translation  of  their  works. 
Notice  of  res-      In  order  to  enjoy  the  protection  of  this 
ervation  of  per-  article,  authors,  in  pubHshing  their  works, 
required.  ^^®  ^^^  obhged  to  prohibit  the  pubhc  repre- 

sentation or  public  performance  of  them. 


Article  12 

Adaptations,  Among  the  unlawful  reproductions  to 
etc.,  considered  ^hich  the  present  Convention  applies  are 
ments.  "^^^'  specially  included  indirect,  unauthorized  ap- 
propriations of  a  literary  or  artistic  work, 
such  as  adaptations,  arrangements  of  music, 
transformations  of  a  romance  or  novel  or 
of  a  poem  into  a  theatrical  piece  and  vice- 
versa,  etc.,  when  they  are  only  the  reproduc- 
tion of  such  work  in  the  same  form  or  in 
another  form  with  non-essential  changes, 
additions  or  abridgments  and  without  pre- 
senting the  character  of  a  new,  original 
work. 

Article  13 


Adaptation  of      Authors  of  musical   works  have   the  cx- 
lusicai    works  elusive  right  to  authorize:  (1)  the  adaptation 

>      mechanical      c     ,\  i        i.       •      i.  x  •  i. 

of    tlies(;    works   to   instruments   serving   to 

istruments.  .  " 

reproduce  them  mechanically;  (2)  the  public 


APPENDIX  847 

performance  of  the  same  works  by  means  of 
these  instruments. 

The    limitations    and    conditions   relative     ^^ch  country 
to   the  application   of   this  article   shall   be  *°  [f^""'"  ^°' 

,    .  •        1     1  ,  1  .       ,      .  ,      .  ,  'tself   the   man- 

determmed   by   the   domestic   legislation   of  ner    in    which 
each  country'  in  its  own  case;  but  all  limita-  Convention 
tions   and    conditions   of    this    nature    shall  ^*^^"  ^pp'^' 
have  an  effect  strictly  limited  to  the  country 
which  shall  have  adopted  them. 

The  provisions  of  paragraph  1  have  no  Not  retroac- 
retroactive  effect,  and  therefore  are  not  ^^^' 
applicable  in  a  country  of  the  Union  to 
works  which,  in  that  country,  shall  have 
been  lawfully  adapted  to  mechanical  in- 
struments before  the  going  into  force  of  the 
present  Convention. 

The  adaptations  made  by  virtue  of  para-     importation 
graphs  2  and  3  of  this  article  and  imported  ^^   mechanical 
without    the    authorization    of    the    parties  ^fbited^^^  ^^^' 
interested  into  a  country  where  they  are  not 
lawful,  may  be  seized  there. 

Article  14 

Authors  of  hterary,   scientific   or  artistic     Reproduction 
works  have  the  exclusive  right  to  authorize  ^^  ci°emato- 
the  reproduction  and  the  public  representa-  ^^^  ' 
tion  of  their  works  by  means  of  the  cinemat- 
ograph. 

,,.  ,  ,  Cinemato- 

Cinematographic  productions  are  protected  graphic  produc- 
as  hterary   or  artistic   works  when   by   the  tions  protected. 


848 


APPENDIX 


Cinemato- 
graphs   copy- 
rightable. 


Also  any  an- 
alogous produc- 
tion. 


arrangement  of  the  stage  effects  or  by  the 
combination  of  incidents  represented,  the 
author  shall  have  given  to  the  work  a  per- 
sonal and  original  character. 

Without  prejudice  to  the  rights  of  the 
author  in  the  original  work,  the  reproduc- 
tion by  the  cinematograph  of  a  hterary, 
scientific  or  artistic  work  is  protected  as  an 
original  work. 

The  preceding  provisions  apply  to  the 
reproduction  or  production  obtained  by 
any  other  process  analogous  to  that  of  the 
cinematograph. 


Author's 
name   indicated 
on    work    suffi- 
cient    proof     of 
authorship. 


Publisher  of 
anonymous  or 
pseudonymous 
works  consid- 
ered as  repre- 
sentative of  au- 
thor. 


Article  15 

In  order  that  the  authors  of  the  works 
protected  by  the  present  Convention  may 
be  considered  as  such,  until  proof  to  the 
contrary,  and  admitted  in  consequence  be- 
fore the  courts  of  the  various  countries  of  the 
Unign  to  proceed  against  infringers,  it  is 
sufficient  that  the  author's  name  be  indi- 
cated upon  the  work  in  the  usual  manner. 

For  anonymous  or  pseudonymous  works, 
the  publisher  whose  name  is  indicated  upon 
the  work  is  entitled  to  protect  the  rights  of 
the  author.  He  is  without  other  proofs  con- 
sidered the  legal  representative  of  the  anony- 
mous or  pseudonymous  author. 


appendix  849 

Article  1(3 

All  infringing  works  may  be  seized  by  tho     Seizure  of  pi- 
competent  authorities  of  the  countries  of  the  '^^^^  copies. 
Union  where  the  original  work  has  a  right  to 
legal  protection. 

Seizure  may  also  be  made  in  these  coun- 
tries of  reproductions  which  come  from  a 
country  where  the  cop>Tight  in  the  w(jrk  has 
terminated,  or  where  the  work  has  not  been 
protected. 

The  seizure  takes  place  in  conformity  with     Seizure  to  be 
the   domestic    legislation    of   each    country.  "^^^^  according 

to    the    laws   of 


Article  17 


each     country. 


The  provisions  of  the  present  Convention  Each  gov- 
may  not  prejudice  in  any  way  the  right  emment  to  ex- 
which  l)elongs  to  the  Government  of  eacli  of  "''"^    '"P^"''" 

.  .  .  sion  as  to  circu- 

the   countries   of  the   Union    to   jiermit,   to  lation,  represen- 
supervise,  or  to  forbid,  by  means  of  legisla-  tation  or  exhibi- 
tion or  of  domestic  poUce,  the  circulation,  the  *'°°  ^^  works, 
representation    or    the   exhibition    of   every 
work  or  production  in  regard  to  which  com- 
petent authority  may  have  to  exercise  this 
right. 

Article  18 

Convention  to 

The  present  Convention  applies  to  all  apply  to  all 
works  which,  at  the  time  it  goes  into  effect,  works  not  in 
have  not  fallen  into  the  ])ublic  domain  of  p"^'!'     ''^'"^ 

.  -        .    .       ,  at   the   time   of 

their  country  of  origin  because  of  the  ex-  jts    going    into 
piration  of  the  term  of  protection.  force. 


850  APPENDIX 

But  if  a  work  by  reason  of  the  expiration 
of  the  term  of  protection  which  was  pre- 
viously secured  for  it  has  fallen  into  the 
public  domain  of  the  country  where  protec- 
tion is  claimed,  such  work  will  not  be  pro- 
tected anew. 
Special  Con-  This  principle  will  be  applied  in  accordance 
ventions      an    ^rj^^  ^j^g  stipulations  to  that  effect  contained 

domestic    leg:s-  .  •    i   /^  •  •  i  •     • 

lation  may  gov-  ^^  tile  Special  Conventions  either  existing  or 
em.  to  be   concluded  between   countries  of  the 

Union,  and  in  default  of  such  stipulations,  its 
application  will  be  regulated  by  each  coun- 
try in  its  own  case. 
Provisions  of  The  preceding  provisions  apply  equally 
Convention  to  jj^  ^^iq  case  of  new  accessions  to  the  Union 
and  where  the  term  of  protection  would  be 
extended  by  the  apphcation  of  Article  7. 


apply     to 
accessions 


Article  19 

More   exten-      The  provisions  of  the  present  Convention 
sive  rig  ts  may  ^^  ^^^  prevent  a  claim  for  the  apphcation 

be    granted    by  ^  .   .  ,  •   ,  , 

domestic  legis-  ^i  more  tavorable  provisions  which  may  be 

lation.  enacted  by  the  legislation  of  a  country  of  the 

Union    in    favor    of    foreigners    in    general. 

Article  20 

More   exten-      The  governments  of  the  countries  of  the 
sive  right  may  ^^j^^^^  reserve  the  right  to  make  between 

be    secured    by  ... 

special  treaties,  themselvos     special     treaties,     when     these 
treaties   would    confer   upon   authors   more 


APPENDIX  851 

extended  rights  than  those  accorded  by  the 
Union,  or  when  they  contain  other  stipula- 
tions not  conflicting  with  the  present  Con- 
vention. The  provisions  of  existing  treaties 
wiiich  answer  the  aforesaid  conditions  re- 
main in  force. 

Article  21 

The  international  office  instituted  under     Bureau  of  the 
the  name  of  "Bureau  of  the  International  international 
Union   for   the   Protection   of  Literary   and 
Artistic  Works"  ("Bureau  de  I'Union  Inter- 
nationale   pour    la    protection    des    oeuvres 
litteraires    et    artistiques")    is    maintained. 

This  Bureau  is  placed  under  the  high  au-     Under  control 
thority    of    the    Government    of    the    Swiss  ot  Switzerland. 
Confederation,  which  controls  its  organiza- 
tion and  supervises  its  working. 

The  ofl^cial  language  of  the  Bureau  is  the     Language    of 
French  language.  =-«;;    •"    ^ 

Article  22 

The  International  Bureau  brings  together,  Duties  of  in- 
arranges  and  publishes  information  of  every  temationai  Bu- 
kind  relating  to  the  protection  of  the  rights 
of  authors  in  their  literary  and  artistic  works. 
It  studies  questions  of  mutual  utility  in- 
teresting to  the  Union,  and  edits,  with  the 
aid  of  documents  placed  at  its  disposal  by 
the  various  administrations,  a  periodical  in 
the    French    language,     treating    questions 


852  APPENDIX 

concerning  the  purpose  of  the  Union.     The 
governments  of  the  countries  of  the  Union 
reserve  the  right  to  authorize  the  Bureau 
by  common  accord  to  pubhsh  an  edition  in 
one  or  more  other  languages,  in  case  expe- 
rience demonstrates  the  need, 
wm    furnish      The  International  Bureau  must  hold  itself 
information    as  ^t  all  times  at  the  disposal  of  members  of  the 
to  copyright.       u^Q^  to  fumish  them,  in  relation  to  ques- 
tions concerning  the  protection  of  literary  and 
artistic   works,    the   special   information   of 
which  they  have  need. 
Annual  report      The  Director  of  the  International  Bureau 
of   Du-ector   of  j^^kes  an  annual  report  on  his  administra- 

Intemational         , .  ....  •      ^     i  j.        n  iu 

Bureau.  ^^^n,  which  IS  communicated  to  all  the  mem- 

bers of  the  Union. 

Article  23 

Expenses  of  The  expenses  of  the  Bureau  of  the  Inter- 
the  internation-  national  Union  are  shared  in  common  by 
ai  Bureau  to  be  ^j^^    Contracting    countries.      Until    a    new 

shared  by  con-    ,      .  .  ,  ^  i     •    ,      .i  j 

trading  states,    decision,  they  may  not  exceed  sixty  thousand 

francs  per  year.    This  sum  may  be  increased 

when  needful  by  the  simi)le  decision  of  one 

of  the  Conferences  provided  for  in  Article  24. 

Method   of         To  determine  the  part  of  this  sum  total  of 

sharing        ex-  expenses  to  be  paid  by  each  of  the  countries, 

penses.  ^j^^  contracting  countries  and  those  which 

later  adhere  to  the  Union  are  divided  into 

six  classes  each  contributing  in  proportion  to 

a  certain  number  of  units,  to  wit: 


APPENDIX  853 

1st  class 25  units 

2d  class 20  units 

3d   class 15  units 

4th  chiss 10  units 

5tli  class 5  units 

(Jth  class 3  units 

These  coefficients  are  multiplied  by  the 
number  of  countries  of  each  class,  and  the 
sum  of  the  products  thus  obtained  furnishes 
the  number  of  units  by  which  the  total  ex- 
pense is  to  be  divided.  The  quotient  gives 
the  amount  of  the  unit  of  expense. 

Each  countr}'  shall  declare,  at  the  time  of 
its  accession,  in  which  of  the  above-mentioned 
classes  it  desires  to  be  placed. 

The    Swiss    Administration    prepares    the     Swiss    Ad- 
budget   of  the  '^Bureau  and  superintends  its  ministration    to 

,.,  ,  ,  ,  prepare  the  bud- 

expenditui'es,  makes  necessary  advances  and     ^  ^^  ^^^^  inter- 
draws  up  the  annual  account,  which  shall  national    Bu- 
be  communicated  to  all  the  other  adminis-  reau,  etc. 
trations. 

Article  24 

The  present  Convention  may  be  subjected     Revisions    of 
to  revision  with  a  view  to  the  introduction  Convention, 
of   amendments    calculated    to    jierfect    the 
system  of  the  Union. 

Questions  of  this  nature,  as  well  as  those     To  take  place 
which  from  other  points  of  view  pertain  to  successively   m 

the  countries  of 

the    development    of    the    Union,    are    con-  ^^  union. 
sidered  in  the  Conferences  which  will  take 
place  successively  in  the  countries  of  the 


854  APPENDIX 

Union   between    the   delegates   of   the   said 
countries.     The  administration  of  the  coun- 
try where  a  Conference  is  to  be  held  will, 
with  the  co-operation  of   the   International 
Bureau,  prepare  the  business  of  the  same. 
The  Director  of  the  Bureau  will  attend  the 
meetings  of  the  Conferences  and  take  part 
in    the    discussions   without    a    deliberative 
voice. 
Changes    re-      No  change  in  the  present  Convention  is 
quire       unani-  valid  for  the  Union  except  on  condition  of 
mous  consen .     ^^^    unanimous    consent    of    the    countries 
which  compose  it. 

Article  25 

Accession   of      The  States  outside  of  the  Union  which 
other  countries,  assure  legal  protection  of  the  rights  which 
are  the  object  of  the  present  Convention, 
may  accede  to  it  upon  their  request. 
To  be  made      This  accession  shall  be  made  known  in 
known  by  Swit-  ^yriting   to    the    Government    of   the    Swiss 
zeriand.  Confederation  and  by  the  latter  to  all  the 

others. 
May    substi-      Such  accession  shall  imply  full  adhesion 
tute    provisions  ^^^  r^\\  ^^j^^  clauses  and  admission  to  all  the 
tnZlr  '*'''"  advantages  stipulated  in  the  present  Con- 
vention.     It   may,   however,    indicate   such 
provisions   of   the    Convention    of   Septem- 
ber 9,    1886,   or  of  the  Additional  Act  of 
May  4,  1896,  as  it  may  be  judged  necessary 
to  substitute  provisionally,  at  least,  for  the 


APPENDIX  855 

corresponding  provisions  of  the  present  Con- 
vention. 

Article  26 

The  contracting  countries  have  the  right  Accession  for 
to  accede  at  any  time  to  the  present  Conven-  colonies  of  for- 
tion  for  their  colonies  or  foreign  possessions.  ^^^^      posses- 

They  may,  for  that  purpose,  either  make  a 
general  declaration  by  which  all  their  colonies 
or  possessions  are  included  in  the  accession, 
or  name  expressly  those  which  are  included 
therein,  or  confine  themselves  to  indicating 
those  which  are  excluded  from  it. 

This  declaration  shall  be  made  known  in 
WTiting  to  the  Government  of  the  Swiss 
Confederation,  and  by  the  latter  to  all  the 
others. 

Article  27 

The  present  Convention  shall  replace,  in  Present  Con- 
the  relations  between  the  contracting  States,  mention  to  re- 
the  Convention  of  Berne  of  September  9,  ygmion^^d  Ad- 
188G,  including  the  Additional  .Article  and  the  ditionai  Articles. 
Final  Protocol  of  the  same  day,  as  well  as 
the  Additional  Act  and  the  Interpretative  But  Heme 
Declaration  of  May  4,  1S9G.  The  conven-  Convention  re- 
tional  acts  above-mentioned  shall  remain  in  !°^'"^  '"  ^^'^'^ 

.  .  •  1      1      ex  between     coun- 

force  m  the  relations  with  the  States  which  do  tries  not  signa- 
not  ratify  the  present  Convention.  tory  to  present 

The  States  signatory-  to  the  present  Con-  Convention, 
vention  may,  at  the  time  of  the  exchange  of 


856  APPENDIX 

Signatory  ratifications,  declare  that  they  intend,  upon 
States  may  de-  ^^^^  ^^  g^^j^  point,  still  to  remain  bound  by 
ves  bound  by  the  provisions  of  the  Conventions  to  which 
former       Con-  they  have  previously  subscribed. 

ventions     upon 
certain  points. 

Article  28 

Convention  to  The  present  Convention  shall  be  ratified, 
be  ratified  not  ^^^  ^j^g  ratifications  shall  be  exchanged  at 
^191^°  "^""^^  Berhn,  not  later  than  the  first  of  July,  1910. 
'  Instrument  to  Each  contracting  party  shall  send,  for  the 
be  filed  with  exchange  of  ratifications,  a  single  instru- 
Swiss   Govern-  ^^^^^  ^^^^^  ^^  deposited,  with  those 

ment.  '        ,  .        ,      ,,  ,  .  n  ., 

of  the  other  countries,  in  the  archives  ol  the 
Government  of  the  Swiss  Confederation. 
Each  party  shall  receive  in  return  a  copy  of 
the  proces-verhal  of  the  exchange  of  ratifica- 
tions, signed  by  the  Plenipotentiaries  who 
shall  have  taken  part  therein. 

Article  29 

Convention         The  present  Convention  shall  be  put  into 
to    take    effect  execution  three  months  after  the  exchange 
*fer^  wchfnge  ^^  ^^^  ratifications  and  shall  remain  in  force 
of  ratifications,    for  an  indefinite  time,  until  the  expiration  of 
one  year  from  the  day  when  denunciation 
of  it  shall  have  been  made. 
Withdrawal         This  denunciation  shall   be  addressed  to 
from  the  Con-  ^^j^^.  (jovcrnment  of  the  Swiss  Confederation. 
It  shall  be  effective  only  as  regards  the  coun- 
try which  shall  have  made  it,  the  Conven- 


ventipn. 


APPENDIX  857 

tion  romaininp;  in  forco  for  tho  other  coun- 
tries of  the  Union. 

Article  30 

The    States    wliich    introduce    into    their     Adoption     of 
legislation    the   term   of   protection   of   fifty  ["""  °^  ^'^^  ^"^ 

•^  1  •   1  "^    dO   years   to   be 

years  *  provided  for  by  .Vrticle  7,  para-  notified, 
graph  1,  of  the  present  Convention,  shall 
make  it  known  to  the  Government  of  the 
Swiss  Confederation  by  a  wTitten  notifica- 
tion which  shall  be  communicated  at  once 
by  that  Goxernment  to  all  the  other  coun- 
tries of  the  Union. 

It  shall  be  the  same  for  such  States  as  shall     Notice    shall 

,.  J       1         iU  be  given  of  re- 

renounce   any  reservations  made   by   them  nouncement   of 
in  virtue  of  Articles  25,  20,  and  27.  any    reserva- 

In    testimony    of    wliich,    the    respective  tions. 
Plenipotentiaries   have    signed    the   present     signatures. 
Convention  and  have  attached  thereto  their 
seals. 

Done  at  Berlin,  the  thirteenth  of  Novem-  Date  of  sign- 
ber,  one  thousand  nine  hundred  eight,  in  a  ;"/\,!Jr^"*'" 
single  copy,  which  shall  be  deposited  in  the 
archives  of  the  Government  of  the  Swiss 
Confederation,  and  of  which  copies,  prop- 
erly certified,  shall  be  sent  through  diplo- 
matic channels  to  the  contracting  countries. 

*  Article  7  provides  for  a  general  term  of  protection 
for  life  and  fifty  years. 


CONVENTION  DE  BERNE  REVISEE  POUR  LA 
PROTECTION  DES  CEUVRES  LITTERAIRES 
ET  ARTISTIQUES  DU  13  NOVEMBRE  1908. 

Article  1.  Les  Pays  contractants  sont  constitues  a 
I'etat  d'Union  pour  la  protection  des  droits  des  auteurs  sur 
leurs  oeuvres  litteraires  et  artistiques. 

Art.  2.  L'expression  "oeuvres  litteraires  et  artistiques" 
comprend  toute  production  du  domaine  litteraire,  scienti- 
fique  ou  artistique,  quel  qu'en  soit  le  mode  ou  la  forme  de 
reproduction,  telle  que:  les  livres,  brochures,  et  autres 
ecrits;  les  oeuvres  dramatiques  ou  dramatico-musicales,  les 
oeuvres  choregraphiques  et  les  pantomimes,  dont  la  mise 
en  scene  est  fixee  par  ecrit  ou  autrement ;  les  compositions 
musicales  avec  ou  sans  paroles;  les  oeuvres  de  dessin,  de 
peinture,  d'architecture,  de  sculpture,  de  gravure  et  de 
lithographic;  les  illustrations,  les  cartes  geographiques; 
les  plans,  croquis  et  ouvrages  plastiques,  relatifs  a  la 
geographic,  a  la  topographic,  a  I'architecture  ou  aux 
sciences. 

Sont  proteges  comme  des  ouvrages  originaux,  sans 
prejudice  des  droits  de  I'auteur  de  I'ceuvre  originale,  les 
traductions,  adaptations,  arrangements  de  musique  et 
autres  reproductions  transformees  d'une  ccuvrc  litteraire 
ou  artistique,  ainsi  que  les  recueils  de  differentes  oeuvres. 

Les  Pays  contractants  sont  tenus  d'assurer  la  protec- 
tion des  oeuvres  mentionn6es  ci-dessus. 

Les  oeuvres  d'art  appliqu6  a  I'industrie  sont  prot^g^es 
858 


APPENDIX  859 

autant  que  permet  de  le  faire  la  legislation  int^rieure  de 
chaque  pays. 

Art.  3.  La  pr(5sente  Convention  s'applique  aux  oeu\Tes 
photographicjucs  et  aux  oeuvres  obtenues  par  un  procedd 
analogue  a  la  photographie.  Les  Pays  contractants  sont 
tenus  d'en  assurer  la  protection. 

Art.  4.  Les  auteurs  ressortissant  a  I'un  des  pays  de 
rUnion  jouissent,  dans  les  pays  autres  que  le  pays  d'origine 
de  I'oeuvre,  pour  leurs  oeuvres,  soit  non  publi6es,  soit  pub- 
liees  pour  la  premiere  fois  dans  un  pays  de  I'Union,  des 
droits  que  les  lois  respectives  accordent  actuellement  ou 
accorderont  par  la  suite  aux  nationaux,  ainsi  que  des 
droits  sp^cialement  accord^s  par  la  presente  Convention. 

La  jouissance  et  I'exercice  de  ces  droits  ne  sont  sub- 
ordonnes  a  aueune  formalite;  cette  jouissance  et  cct  exer- 
cice  sont  independants  de  I'existence  de  la  protection  dans 
le  pays  d'origine  de  I'oemTe.  Par  suite,  en  dehors  des 
stipulations  de  la  presente  Convention,  I'^tendue  de  la 
protection  ainsi  que  les  moyens  de  recours  garantis  a 
I'auteur  pour  sauvegarder  ses  droits  se  reglent  exclusive- 
ment  d'apres  la  legislation  du  pays  ou  la  protection  est 
reclamce. 

Est  consid(5r6  comme  pays  d'origine  de  I'oeuvre:  pour  les 
ceuvres non  publiees,  celui  auquel  appartient  I'auteur;  pour 
les  ceuvres  publiees,  celui  de  la  preniiere  publication,  et 
pour  les  oeuvres  publiees  siniultanenient  dans  plusieurs 
pays  de  I'Union,  celui  d'entre  eux  dont  la  legislation 
accorde  la  duree  de  protection  la  plus  courte.  Pour  les 
ceuvres  publiees  siniultanenient  dans  un  pays  Stranger  a 
I'Union  et  dans  un  iniys  de  I'Union,  c'est  ce  dernier  pays 
qui  est  exclusivement  consider^  comme  pays  d'origine. 


860  APPENDIX 

Par  cEU\Tes  publiees,  il  faut,  dans  le  sens  de  la  presente 
Convention,  entendre  les  oeuvres  editees.  La  representa- 
tion d'une  oeuvre  dramatique  ou  di'amatico-musicale, 
I'execution  d'une  oeuvre  musicale,  I'exposition  d'une 
oeuvre  d'art  et  la  construction  d'une  oeuvre  d'architecture 
ne  constituent  pas  une  publication. 

Art.  5.  Les  ressortissants  de  I'un  des  pays  de  I'llnion, 
qui  publient  pour  la  premiere  fois  leurs  oeu\Tes  dans  un 
autre  pays  de  I'Union,  ont,  dans  ce  dernier  pays,  les 
memes  droits  que  les  auteurs  nationaux. 

Art.  6.  Les  auteurs  ne  ressortissant  pas  a  Fun  des  pays 
de  rUnion,  qui  publient  pour  la  premiere  fois  leurs  oeu\Tes 
dans  I'un  de  ces  pays,  jouissent,  dans  ce  pays,  des  memes 
droits  que  les  auteurs  nationaux,  et  dans  les  autres  pays 
de  rUnion,  des  droits  accordes  par  la  presente  Convention. 

Art.  7.  La  duree  de  la  protection  accordee  par  la 
presente  Convention  comprend  la  vie  de  I'auteur  et  cin- 
quante  ans  apres  sa  mort. 

Toutefois,  dans  le  cas  ou  cette  duree  ne  serait  pas  uni- 
formement  adoptee  par  tous  les  pays  de  I'Union,  la  duree 
sera  reglde  par  la  loi  du  pays  oCl  la  protection  sera  re- 
clamee  et  elle  ne  pourra  exceder  la  duree  fixee  dans  le 
I)ays  d'origine  de  I'oeuvre.  Les  Pays  contractants  ne 
seront,  en  consequence,  tenus  d'appliquer  la  disposition  de 
I'alinea  precedent  que  dans  la  mesure  oil  elle  se  concilie 
avec  leur  droit  interne. 

Pour  les  oeuvres  photographiques  et  les  oeu\Tes  ob- 
tenues  par  un  proc6d6  analogue  a  la  photographic,  pour 
les  oeuvres  posthumes,  pour  les  ceuvres  anonynies  ou 
pseudonymes,  la  duree  de  la  protection  est  roglee  par  la 
loi  du  pays  oCi  la  protection  est  r6clamde,  sans  que  cette 


APPENDIX  861 

duree  jjuisse  cxc^der  la  duroe  lixee  dans  le  pays  d'(jrigine  de 
ra'u\Te. 

Art.  8.  Les  auteurs  d'ceuvTes  non  publioes,  ressortissant 
a  I'lm  dos  pays  do  I'Union,  ot  les  auteurs  d'ceuvres  puhliees 
l)()ur  la  premiere  fois  dans  un  de  ees  pays  jouissent,  dans 
les  autres  pays  de  I'Union,  i)en(lant  toute  la  duree  du 
droit  sur  roeuvrc  originale,  du  droit  exclusif  de  faire  ou 
d'autoriscr  la  traduction  de  leurs  oeuvres. 

Art.  9.  Les  romans-feuilletons,  les  nouvelles  et  toutes 
autres  oeuvres,  soit  litteraires,  soit  scientifiques,  soit 
artistiques,  quel  qu'en  soit  I'objet,  puhlies  dans  les  jour- 
naux  ou  recueils  periodiqucs  d'un  des  pays  de  I'Union,  ne 
peuvent  etre  reproduits  dans  les  autres  pays  sans  le  eon- 
sentment  des  auteurs. 

A  I'exclusion  des  romans-feuilletons  et  des  nouvelles, 
tout  article  de  journal  i)eut  etre  reproduit  par  un  autre 
journal,  si  la  reproduction  n'en  est  pas  expressement 
interdite.  Toutefois,  la  source  doit  etre  indicjuee;  la  sanc- 
tion de  cette  obligation  est  determinee  par  la  legislation  du 
pays  oil  la  protection  est  reclam^>e. 

La  protection  de  la  presente  Convention  ne  s'api^liciue 
pas  aux  nouvelles  du  jour  ou  aux  faits  divers  (lui  ont  le 
caractere  de  simj)les  informations  de  jiresse. 

Art.  10.  En  ce  qui  concerne  la  faculty  de  faire  licitement 
des  emprunts  a  des  oeuvres  litteraires  ou  artistiques  pour 
des  publications  destinees  a  I'enseignement  ou  ayant  un 
caractere  scientifi([ue,  ou  pour  des  clirestomathies,  est 
rdserv'c  I'effet  de  la  legislation  des  pays  de  I'Union  et  des 
arrangements  particuliers  existants  ou  a  conclure  entre 
eux. 

Art.   11.  Les  stipulations  de  la  pr<5sente  Convention 


862  APPENDIX 

s'appliquent  a  la  representation  publique  des  oeu\Tes 
dramatiques  ou  dramatico-musicales,  et  a  I'execution 
publique  des  oeuvres  musicales,  que  ces  oeuvres  soient 
publiees  ou  non. 

Les  auteurs  d'oeuvres  dramatiques  ou  dramatico- 
musicales  sont,  pendant  la  duree  de  leur  droit  sur  Toeuvre 
originale,  proteges  contre  la  representation  publique  non 
autorisee  de  la  traduction  de  leurs  ou\Tages. 

Pour  jouir  de  la  protection  du  present  article,  les 
auteurs,  en  publiant  leurs  oeuvres,  ne  sont  pas  tenus  d'en 
interdire  la  representation  ou  I'execution  publique. 

Art.  12.  Sont  specialement  comprises  parmi  les  re- 
productions illicites  auxquelles  s' applique  la  presente  Con- 
vention, les  appropriations  indirectes  non  autorisees  d'un 
ou\Tage  litteraire  ou  artistique,  telles  que  adaptations, 
arrangements  de  musique,  transformations  d'un  roman, 
d'une  nouvelle  ou  d'urie  poesie  en  piece  de  theatre  et 
reciproquement,  etc.,  lorsqu'elles  ne  sont  que  la  reproduc- 
tion de  cet  ou\Tage,  dans  la  meme  forme  ou  sous  une  autre 
forme,  avec  des  changements,  additions  ou  retranche- 
ments,  non  essentiels,  et  sans  presenter  le  caractere  d'une 
nouvelle  oeu\Te  originale. 

Art.  13.  Les  auteur&  d'oeuvres  musicales  ont  le  droit 
exclusif  d'autoriser:  1°  I'adaptation  de  ces  oeuvres  a  des 
instruments  servant  a  les  reproduire  mecaniquement;  2° 
I'execution  publique  des  memcs  oeu\Tes  au  moyen  de  ces 
instruments. 

Des  reserves  et  conditions  relatives  a  I'application  de  cet 
article  pourront  etre  determinec^'S  par  la  legislation  in- 
terieure  de  chac}ue  pays,  en  ce  qui  le  concerne;  mais 
toutes  reserves  et  conditions  de  cette  nature  n'auront 


APPENDIX  863 

qu'un  cffct  strictemcnt  liinitc'  uu  i)ays  (jui  les  aurait 
^'tablies. 

La  disposition  do  Talinea  1"^  n'ji  i)as  d'cffot  rf^'troactif  et, 
par  suite,  n'cst  j)as  ai)plic'able,  dans  un  pays  dc  I'Union, 
aux  oeuvres  qui,  dans  ce  pays,  auront  6t6  adapt6es  licite- 
niont  aux  instruments  m^canicjues  avant  la  misc  en 
vigueur  de  la  prescnte  Convention. 

Les  adaptations  faites  en  vertu  des  alin^as  2  et  3  du 
pr(5sent  article  et  import6es,  sans  autorisation  des  parties 
intrrcssecs,  dans  un  pays  ou  elles  ne  seraient  pas  licites, 
pouiTont  y  etre  saisies. 

Art.  14.  Les  auteurs  d'oeuvTes  litteraires,  scientifiques 
ou  artistiques  ont  le  droit  exelusif  d'autoriser  la  reproduc- 
tion ot  la  representation  publique  de  lours  ogu\tos  par  la 
cinoniatographio. 

Sont  protegees  comme  oeu\Tes  litteraires  ou  artistiques 
les  productions  cinoniatographiques  lorsque,  par  les  dis- 
positifs  do  la  mise  en  scene  ou  les  combinaisons  des  in- 
cidents representes,  I'autour  aura  donno  a  I'oeuvre  un 
caractere  personnel  et  original. 

Sans  pn'judico  des  droits  ilo  I'autour  tie  I'ocuvro  origi- 
nalo,  la  reproduction  par  la  cinoniatographio  d'une  a?uvre 
littoraire,  scientifique  ou  artistique  est  prot6g6e  comme 
une  oeuvre  originale. 

Los  dispositions  (jui  precedent  s'appliquont  a  la  re- 
j)r()duction  ou  production  ol)tonuo  par  tout  autre  procode 
analogue  a  la  cin^matograj^hio. 

Art.  15.  Pour  (juo  los  autours  dos  ouvrages  proteges  par 
la  prosonte  Convention  .soient,  jusqu'a  prouvo  contrairo, 
consid6r(3s  comme  tels  et  admis,  en  consocjuonco,  dovant 
les  tribunaux  dos  divers  pays  de  I'Union,  a  oxorcer  des 


864  APPENDIX 

poursuites  contre  les  contrefacteurs,  il  suffit  que  leur  nom 
soit  indique  sur  I'ouvrage  en  la  maniere  usitee. 

Pour  les  CEU\Tes  anonymes  ou  pseudonymes,  I'editeur 
dont  le  nom  est  indique  sur  I'ouvrage  est  fonde  a  sauve- 
garder  les  droits  appartenant  a  I'auteur.  II  est,  sans 
auteurs  preuves,  repute  ayant  cause  de  I'auteur  anonyme 
ou  pseudonyme. 

Art.  16.  Toute  oeuvre  contrefaite  pent  etre  saisie  par 
les  autorites  competentes  des  pays  de  TUnion  ou  I'oeuvre 
originale  a  droit  a  la  protection  legale. 

Dans  ces  pays,  la  saisies  pent  aussi  s'appliquer  aux 
reproductions  provenant  d'un  pays  ou  I'oeuvre  n'est  pas 
protegee  ou  a  cesse  de  I'etre. 

La  saisie  a  lieu  conformement  a  la  legislation  inte- 
rieure  de  chaque  pays. 

Art.  17.  Les  dispositions  de  la  presente  Convention  ne 
peuvent  porter  prejudice,  en  quoi  que  ce  soit,  au  droit 
qui  appartient  au  Gouvernement  de  chacun  des  pays  de 
rUnion  de  pemiettre,  de  surveiller,  d'interdire,  par  des 
mesures  de  legislation  ou  de  police  interieure,  la  circula- 
tion, la  representation,  I'exposition  de  tout  ou\Tage  ou 
production  a  I'egard  desquels  I'autorite  competente  aurait 
a  exercer  ce  droit. 

Art.  18.  La  presente  Convention  s'applique  a  toutes 
les  oeuvres  qui,  au  moment  de  son  entree  en  vigueur,  ne 
sont  pas  encore  tombees  dans  le  domaine  public  de  leur 
pays  d'originc  par  I'expiration  de  la  duree  de  la  protec- 
tion. 

Cependant,  si  unc  ceuvre,  par  I'expiration  de  la  dur6e 
de  protection  qui  lui  ctait  ant^rieurement  reconnue,  est 
tomb6e  dans  le  domaine  public  du  ])ays  ou  la  protcc- 


APPENDIX  865 

tion  est  reclam6e,  cette  ceuvre  n'y  sera  pas  protegee  a 
nouveau. 

I/ajiplication  do  re  principe  aura  lieu  suivant  les  stipula- 
tions I'onteiiues  dans  les  conventions  sp^ciales  existantes  ou 
a  eonclure  a  cet  effet  entre  pays  de  I'Union.  A  dc'-faut  de 
seniblables  stipulations,  les  pays  respeetifs  r6gleront, 
ehac'un  pour  ce  qui  le  conceme,  les  modalitds  relatives  a 
cette  application. 

Les  dispositions  qui  pr^^cedent  s'appliquent  (''galement 
en  cas  de  nouvelles  accessions  a  I'Union  et  dans  le  cas  ou 
la  durce  de  la  protection  scrait  ctcndue  par  application 
de  I'article  7. 

.•Vrt.  19.  Les  dispositions  de  la  pr6sente  Convention 
n'empechcnt  pas  de  revcndiquer  Tai^plication  de  disposi- 
tions plus  larges  qui  seraicnt  edictees  par  la  legislation 
d'un  pays  de  I'Union  en  faveur  des  etrangers  en  general. 

Art.  20.  Les  Gouvemements  des  pays  de  TUnion  se 
roserv'ent  le  droit  de  prendre  entre  eux  des  arrangements 
particuliers,  en  tant  que  ces  arrangements  confereraient 
aux  auteurs  des  droits  plus  dtendus  que  ceux  accord^s 
par  I'Union,  ou  qu'ils  renfermeraient  d'autres  stipulations 
non  contraires  a  la  presente  Convention.  Les  dispositions 
des  arrangements  existants  qui  repondent  aux  conditions 
precit6es  restent  applicables. 

^ViiT.  2L  Est  maintenu  Toffice  international  institue 
sous  le  nom  de  "Bureau  de  I'Union  intcrnationale  poiu-  la 
protection  des  oeu\Tes  litteraires  et  artisticiues." 

Ce  Bureau  est  plac6  sous  la  haute  autorit6  du  Gouveme- 
mefit  de  la  Conf('d(''ration  Suisse,  (jui  en  regie  I'organisa- 
tion  et  en  surveille  le  fonctionnement. 

La  langue  officielle  du  Bureau  est  la  langue  francaise. 


866  APPENDIX 

Art.  22.  Le  Bureau  international  centralise  les  ren- 
seignements  de  toute  nature  relatifs  a  la  protection  des 
droits  des  auteurs  sur  leurs  oeuvres  litteraires  et  artistiques. 
II  les  coordonne  et  les  publie.  II  procede  aux  etudes 
d'utilite  commune  interessant  I'Union  et  redige,  a  I'aide 
des  documents  qui  sont  mis  a  sa  disposition  par  les  diverses 
Administrations,  une  feuille  periodique,  en  langue  fran- 
caise,  sur  les  questions  concemant  I'objet  de  I'Union.  Les 
Gouvernements  des  pays  de  TUnion  se  reservent  d'au- 
toriser,  d'un  commun  accord,  le  Bureau  a  publier  une 
edition  dans  une  ou  plusieurs  autres  langues,  pour  le  cas 
ou  I'experience  en  aurait  demontre  le  besoin. 

Le  Biu-eau  international  doit  se  tenir  en  tout  temps  k  la 
disposition  des  membres  de  FUnion  pour  leur  fournir,  sur 
les  questions  relatives  a  la  protection  des  oeuvres  litteraires 
et  artistiques,  les  renseignements  speciaux  dont  ils  pour- 
raient  avoir  besoin. 

Le  Directeur  du  Bureau  international  fait  sur  sa  gestion 
un  rapport  annuel  qui  est  conamunique  a  tous  les  membres 
de  I'Union. 

Art.  23.  Les  d^penses  du  Bureau  de  I'Union  intema- 
tionale  sont  supportees  en  commun  par  les  Pays  contract- 
ants.  Jusqu'a  nouvelle  decision,  elles  ne  pourront  pas 
depasser  la  somme  de  soixante  mille  francs  par  ann6e. 
Cette  somme  pourra  ctre  augmentce  au  besoin  par  simple 
decision  d'une  des  Conferences  prcvuos  a  I'articlc  24. 

Pour  determiner  la  part  contributive  de  cliacun  des  pays 
dans  cette  somme  totale  des  frais,  les  Pays  contractants  et 
ceux  qui  adh^reront  ultericurement  a  I'Union  sont  di^^isds 
en  six  classes  conlribuant  chacune  dans  la  proportion  d'un 
certain  nombre  (i'unites,  savoir: 


APPENDIX  867 

1"*  classe 25  unitZ-s 

2™"  classc 20  unity's 

3"'"  classe 15  uiiit(''.s 

4""*  classc 10  iiiiit('-s 

5'"''  classe 5  nnitt's 

6"""  classe :i  unites 

Ccs  coefTicionts  sunt  niultiplies  pur  lo  nomhrc  dos  pays 
dc  c'h.'Ujue  clu.sse,  vA  la  soiiunc  des  produits  aiiisi  obtcnus 
fournit  le  nonihre  d'unites  par  lequel  la  dej)ense  totale  doit 
etre  divisee.  Lc  (luotient  donne  le  montant  de  I'unite  de 
depenso. 

Chacjue  pays  dcdarera,  au  moment  de  son  accession, 
dans  laquelle  des  susdites  classes  il  demande  a  etre 
range. 

L'Administration  Suisse  prepare  le  budget  du  Bureau  et 
en  surveille  les  depenses,  fait  les  avances  necessaires  et 
^tablit  le  compte  annuel  qui  sera  communiqu6  a  toutes  les 
autres  Administrations. 

Art.  24.  La  presente  Convention  peut  etre  soumise  a 
des  revisions  en  vue  d'y  introduire  les  ameliorations  de 
nature  a  perfectionner  le  systeme  de  I'Union. 

Les  questions  de  cette  nature,  ainsi  ciue  celles  qui  inte- 
ressant  a,  d'autres  points  de  vue  le  developpement  de  I'- 
Union, sont  traitees  dans  des  Conferences  cjui  auront  lieu 
successivement  dans  les  pays  de  I'Union  entn*  les  dt'legues 
desdits  pays.  L'Administration  du  pays  ou  doit  sieger  une 
Conference  prepare,  avec  le  concours  du  Bureau  inter- 
national, les  travaux  de  celle-ci.  Le  Directeur  du  Bureau 
assiste  aux  seances  des  Conferences  et  prend  ])art  aux 
discussions  sans  voix  deliberative. 

Aucun    changement    a   la   prdsente   Convention    n'est 


868  APPENDIX 

valable  pour  rUnion  que  moyennant  I'assentiment  una- 
nime  des  pays  qui  la  composent. 

Art.  25.  Les  £itats  etrangers  a  rUnion  et  qui  assurent 
la  protection  legale  des  droits  faisant  Fob  jet  de  la  presente 
Convention,  peuvent  y  acceder  sur  leur  demande. 

Cette  accession  sera  notifiee  par  ecrit  au  Gouvernement 
de  la  Confederation  Suisse,  et  par  celui-ci  a  tous  les  autres. 

Elle  emportera,  de  plein  droit,  adhesion  a  toutes  les 
clauses  et  admission  a  tous  les  avantages  stipules  dans  la 
presente  Convention.  Toutefois,  elle  pourra  contenir 
I'indication  des  dispositions  de  la  Convention  du  9  septem- 
bre  1886  ou  de  FActe  additionnel  du  4  mai  1896  qu'ils 
jugeraient  necessaire  de  substituer,  provisoirement  au 
moins,  aux  dispositions  correspondantes  de  la  presente 
Convention. 

Art.  26.  Les  Pays  contractants  ont  le  droit  d'acceder  en 
tout  temps  a  la  presente  Convention  pom*  leurs  colonies 
ou  possessions  etrangeres. 

lis  peuvent,  a  cet  effet,  soit  faire  une  declaration  gen^rale 
par  laquelle  toutes  leurs  colonies  ou  possessions  sont  com- 
prises dans  Faccession,  soit  nommcr  expressemcnt  celles 
qui  y  sont  comprises,  soit  se  borner  a  indiquer  celles  qui 
en  sont  exclues. 

Cette  declaration  sera  notifi6e  par  ^crit  au  Gouverne- 
ment de  la  Confederation  Suisse,  et  par  celui-ci  a  tous  les 
autres. 

Art.  27.  La  presente  Convention  reniplacera,  dans  les 
rapi)orts  entrc  les  Etats  contractants,  la  Convention  de 
Berne  du  9  septembre  1886,  y  compris  l^Vrticle  additionnel 
et  le  Protocole  de  cloture  du  meme  jour,  ainsi  que  FActe 
additionnel  et  la  Declaration  interpretative  du  4  mai  1896. 


APPENDIX  869 

Lcs  actes  conventionnels  ])r(^'cit(?s  rostcront  en  vigueur 
duns  Ics  rai)i)ort.s  avcc  los  Etats  qui  nc  ratificraient  pas 
la  pr6sente  Convention. 

Les  Etats  signal  aires  de  la  presente  Convention  jxjur- 
ront,  lors  de  rechange  des  ratifications,  declarer  qu'ils 
entendent,  sur  tel  ou  tel  point,  rester  encore  li6s  par  les 
dispositions  des  Conventions  auxquelles  ils  ont  souscrit 
anterieiirement. 

Art.  28.  La  presente  Convention  sera  ratifi6e,  et  les 
ratifications  en  seront  {^'changees  d  Berlin  au  ])lus  tard  le 
1"  juillet  1910. 

Chaque  Partie  contractante  remettra,  poiu*  IV-change 
des  ratifications,  un  seul  instrument,  (jui  sera  d(5pos6,  avec 
ceux  des  autres  pays,  aux  archives  du  Gouvemement  de 
la  Confrdrration  Suisse.  Chaciue  Partie  reccvra  en  retour 
un  excniplaire  du  j)roces-verl)al  d'c'-cliange  des  ratifica- 
tions, signe  par  les  Plenipotentiaires  qui  y  auront  pris 
part. 

Art.  29.  La  presente  Convention  sera  mise  a  execution 
trois  mois  ai)res  I'echange  des  ratifications  et  denieurera 
en  vigueur  pendant  un  temps  ind(?termin6,  jusqu'a  I'expira- 
tion  d'une  amiee  a  partir  du  jour  ou  la  denonciation  en 
aura  etc  faite. 

Cette  d(jnonciation  sera  adress6e  au  Gouvemement  de  la 
Confederation  Suisse.  Elle  ne  produira  son  efTet  qu'a 
lY'gard  (hi  ]iays  (jui  I'aura  faite,  la  Convention  restant 
ex^cutoire  pour  li»s  autres  jiays  de  I'Union. 

Art.  30.  Les  Etats  qui  introduiront  dans  leur  legislation 
la  duree  de  ])rotection  de  cinciuante  ans  jir^vue  })ar  1'- 
article  7,  alinea  1",  de  la  pre.sente  Convention,  le  feront 
connaitre  au  Gouvemement  de  la  Confederation  Suis.^^e  par 


870  APPENDIX 

une  notification  ecrite  qui  ssra  commimiquee  aussitot  par 
ce  Gouvernement  a  tons  les  autres  Etats  de  rUnion. 

II  en  sera  de  meme  poiir  les  Etats  qui  renonceront  aux 
reserves  faites  par  eux  en  vertu  des  articles  25,  26  et  27. 

En  foi  de  quoi,  les  Plenipotentiaires  respectifs  ont  signe 
la  presente  Convention  et  y  ont  appose  leurs  cachets. 

Fait  a  Berlin,  le  13  novembre  mil  neuf  cent  huit,  en  un 
seul  exemplaire,  qui  sera  depose  dans  les  archives  du 
Gouvernement  de  la  Confederation  Suisse  et  dont  des 
copies,  certifiees  conformes,  seront  remises  par  la  voie 
diplomatique  aux  Pays  contractants. 

{Suivent  les  signatures.) 


INDEX 


A 

Abandonment  page 

in  use  (jf  title 449 

Abbreviations 

in  notice  of  copyright "lUl 

Accident 

film  destroyed  by 220 

in  theatre,  see  "Theatre." 

raiscellaneous,  in  theatre '-i2'-i 

Accounting 

defenses  to,  in  copyright  action 614 

in  copyright  action,  method  of  procedure G23 

in  unfair  competition 4*i 

infringement  of  common-law  rights 498 

not  given  where  actjuiescence  shown 452 

of  profits  in  copyright  action 008,  Gl.i 

ordered  even  where  no  knowledge 592 

Acquiescence 

in  use  of  title 449 

right  to  injunction  though  not  to  accounting 452 

scienter 451 

Action 

allegations  and  proof  required  in  copyright 59;} 

cause  of,  for  malicious  discharge  of  actor 140 

cause  of,  in  copyright  and  unfair  comfK-tition  joined 584 

cojjyright,  in  e(|uity 0()2 

joinder  of  caus<>s  of 577 

misjoiiuler  of  |)arties  to 577 

on  copyright,  where  brought 585 

871 


872  INDEX 

Action — Continued  page 

on  unpublished  work,  where  brought 586 

proceedings  for  injunction,  damages,  profits  and  those  for  seizure 

of  infringing  copies  and  plates  may  be  united  in  one 619 

proprietor  must  show  how  he  acquired  copyright 596 

purporting  to  be  brought  under  Copyright  Act 628 

who  may  maintain,  for  infringement 577 

Action  at  Law 

in  copyright  actions 626 

may  be  pursued  in  copyright  actions  concurrently  with  one  in 
equity 627 

Actor 

a  wage-earner  under  Bankruptcy  Act 263 

actor's  breach  of  contract — damages 166 

anticipatory  breach  by  producer 135 

booking  agencies 178 

changing  motion  picture 169 

contract  for  transportation — damages 193 

contract  for  work  on  Sunday 125 

contract  labor  and  exclusion  laws 191 

contract  with  infants 173 

control  of  exhibition  of  motion  picture 173 

costumes ■■ 197 

death  terminates  contract 164 

enticement  of 198 

escrow  agents 186 

exclusive  contract  not  in  restraint  of  trade 96 

exposure  to  obscenity,  ridicule,  degradation,  etc 136 

failure  to  rehearse 156 

form  of  notif'c  of  discharge  to  be  given  to 164 

garnishment  of  salary 184 

grounds  for  discharge 156 

how  many  causes  of  action  for  breach 145 

illness  of 157 

immorality  of 162 

inability  of  producer — when  studio  closed  by  authorities 176 

incapacity  to  perform 157 

incompetency 158 


INDEX 


873 


KctOT—ConlimwA  p*"^ 

"incompetency"  not  equivalent  "un.satisfactory" -    •    l-'^'J 

injunetion  for  breach  of  contract  where  acrvices  are  special,  unique 


95 
108 


and  extnionlinary 

iiijuiirtion  Mcndcnte  hte 

iiiiunes  hv,  to  patrons •'**' 

insolence  of 

insubordination  of ^"f 

intoxication  of '  *"* 

law  KoverninK  validity  of  contract 1*-^^ 

t  1 7 

IciiHt  h  of  engagement " ' 

lial)ility  of  manager  for  negligence  of ^19 


lihcl  of. 


202 


liiiuidatcd  damage  clause  for  breach 152 

measure  of  damages  in  event  of  breach  of  contract 147 

modification  of  contract 142 

not  requirctl  to  i)lay  inferior  part 139 

performance  in  unlicensed  theatre 192 

power  of  company's  officer  to  contract— agency 195 

producer's  offer  of  reemployment  after  breach 154 

profits  iLS  a  basis  for  damage 149 

proprietor  liable  for  insulting  language  of 322 

questions  of  travel 1'* 

remedy  for  l)reacli  of  contract 146 

remedy  for  malicious  discharge 14« 

remedy  where  mutihition  of  motion  picture  occurs 171 

renewal  of  contract l'*'^ 

right  to  perform  part  of  contract 105 

royalties  in  addition  to  salary 190 

services  "actually  performed" 131 

substantial  performance 13^ 

tender  of  services  after  breach 147 

two  weeks'  notice  and  other  customs 119 

unfaithfulness  of 1^2 

warranty  of  n^iuisite  skill  and  al)ility 159 

when  contract  between  actor  and  producer  a  joint  venture 1S7 

where  contract  with  producer  not  one  of  joint  venture H>S 

where  he  |ioses  m  serial  story    '■°*' 

wlu-re  services  arc  to  be  "satisfactory" H- 

VVorkujen  Com|K'nsution  AcIjj 1°" 


874  INDEX 

Act  PAGE 

of  play  a  component  part  thereof 545 

word  "  Act  "  a  descriptive  title 410 

Ad  Interim  Protection 

of  foreign  works 641 

Admission  Fee 

for  Sunday  performances 392 

Advertisements 

billboard 228 

contract  with  lithographer  for  posters 228 

copyright  in 536,  539,  540 

curtain  displays 228,  229 

curtain  displays  in  first-class  theat  res 230 

immoral    377 

important  in  unfair  competition 463 

insertion  of  infringing,  makes  one  liable 587,  note 

misleading  not  copyrightable 541 

Agency 

between  belligerent  alien  and  citizen 530 

payment  of  royalties  to  agent 531 

power  of  company's  officer  to  contract  for  services  of  actor 195 

Aisle 

chairs  and  fixed  seats  in 366 

patron  injured  in 306 

space  in  rear  of  orchestra 366 

standing  in 365 

Alien 

belligerent,  status  of,  for  copyright 527 

right  to  secure  copyright 524 

see  "War." 

see  "Delligerent  Aliens." 

Allegations 

nccoHHury  in  copyright  action 593 


INDEX  875 

American  Citizen  pa<;k 

how  U)  socuro  eopyrlKht  in  rnit/><i  KinK'lom  and  Protectorates  654 

how  U}  fM'Curo  copyright  in  Newfoundland 658 

how  to  secure  cojiyrinlit  in  Australia 658 

how  to  secure  cointinht  in  New  Zealand 659 

how  to  secure  eopyrinht  in  I'nion  of  South  Africa 660 

how  to  secure  copyright  in  Canada 060 

Animals 

see  "Wild  animals." 

Anonymous  Name 

may  be  maintained  by  author 60 

Appeal 

in  copyright  actions 638 

Application 

idr  copyright  registration  of  motion  picture 500 

for  renewal  of  copyright  when  made 547 

Aquarium 

wiieii  theatre  license  required  for 340 

Arrangement 

copyri}iht  in,  of  words                             560 

new,  of  work 534 

of  theme,  confers  copyright 534 

Assault 

liability  of  theatre  proprietor  for 326 

Assignability 

of  coiitracts  between  co-authors 51 

of  contracts  between  ccwiuthors  and  publishers ")1 

of  contracts  for  literary  works  ti7 

of  marks  and  devices 4t)5 

of  name  by  executor 480 

of  one's  own  name 477 

of  title 463 

of  tnidi^-mark  and  trade  name 465 


876  INDEX 

Assignee  page 

name  of,  on  notice  after  renewal 549 

of  copjTight  may  sue 577 

when  not  entitled  to  renewal  of  copyright 548 

Assignment 

exclusive  license  of  entire  term  an 582 

right  to  make,  under  common  law 495 

Assignment  of  Copyright 

action  to  compel,  may  be  brought  in  state  court 553 

and  license  distinguished -• 557 

agreement  for,  specifically  enforced 554 

by  author  to  magazine  proprietor 555 

exclusive  license  is 558 

failure  to  record,  will  not  avail  infringer 553 

implied  warranty  of  title  on 557 

in  film  and  in  play 552 

in  general 550 

made  in  foreign  country 551 

must  be  in  writing 551 

must  be  recorded 551,  552 

no  formal  assignment  of  right  to  copyright 550 

no  restriction  on 550 

sale  of  a  number  of  copyrights  is  an 552 

sale  of  work  is  not  an 554 

to  two  people  makes  them  joint-owners 550 

Assumed  Name 

copyright  may  be  taken  out  in 532 

copyrights  do  not  confer  greater  rights 533 

Australia 

copyright  in  Commonwealth  of 655,  658 

Author 

akin  to  actor 54 

compcn.sation  guaranteed ^^^ 

fontraf^t  of,  with  |)rndurcr  personal 67 

contract  of,  containing  negative  covenant  enforceable 71 


INDEX  877 

Author — CnnlinucfJ                                               *  tage 

contract  to  write  specifically  enforced 92 

death  of,  aa  afTectinR  riRht  to  renewal  of  copyright 549 

death  of,  title  of  work  pa.sse8 464 

entitled  to  royalties,  whether  work  produced  or  not 82 

forfeiture  for  non-j)ayinent  of  royalties 84 

grants  sole  license 73 

grants  license  with  limitations 74 

his  conuiion-law  riphts 491 

idejus  of,  not  copyriRhtable 560 

injunctions  pendente  lite  more  readily  granted 92 

manuscript  lost  after  submission 87 

may  l)e  guilty  of  infringement  of  his  own  work 592 

may  maintain  action  against  third  parties 92 

may  nf)t  part  with  work  and  retain  title 464 

may  part  with  j)ortion  of  work  and  retain  title 464. 

maj'  reserve  dramatic  rights  in  contribution  to  magazine 16,  17 

may  copyright  magazine  article  in  his  own  name 18 

may  not  recover  for  libelous,  immoral  or  seditious  work 73 

mut  ilation  of  his  work 53 

name  of  deceased 61 

name  falsely  imputed  to  work 61 

nature  of  contract  of  co-authorship 45 

of  magazine  article  reserving  dramatization  rights 555 

of  work  must  be  established  in  copyright  action 597 

paiil  stipulated  amount 80 

proprietor  of  copyright  must  show  how  he  acquired  same  from .  .  596 

purchaser  required  to  produce  work 89 

receives  percentage  of  profits 77 

refund  of  advance  f)ayments 90 

renewal  of  copyright  to 547 

rights  where  motion  |)icturc  l)ased  upon  dramatic  composition..  .  1 

right.s  where  motion  picture  hi\si\\  upon  novel 11 

rights  where  motion  picture  ba-sotl  U[)on  historical  work 11 

rights  where  motion  picture  ba-sed  upon  short  story 15 

rights  where  motion  picture  based  upon  sketch 15 

rights  where  motion  picture  based  upon  poem 15 

rights  when-  motion  picture  based  uiM)n  lecture 15 

rights  wlicre  motion  picture  biusitl  u|H)n  sermon lo 

rights  where  motion  picture  biused  \i\vjn  original  scenario 10 


878  INDEX 

Author — Continued  page 

rights  where  motion  picture  based  upon  news  item 23 

rights  where  motion  picture  based  upon  work  in  public  domain. .  24 

rights  where  motion  picture  produced  in  serial  form 25 

rights  as  between  employer  and  employe 26 

rights  of  co-author 35,  45 

rights  of,  where  music  composed  for  picture 51 

rights  of,  where  changes  have  been  made  in  the  text  of  his  work.  53 

rights  of,  where  his  work  is  criticised 63 

stipulated  damages  for  breach 83 

when  contribution  to  magazine  falls  into  public  domain 18 

when  he  may  rescind 90 

when  producer  may  rescind 90 

when  work  to  be  done  to  satisfaction 73 

work  of  libelous,  immoral  or  seditious  nature 73 

work  secured  by  prize  contest 88 

work  to  be  produced  at  definite  time 75 

B 

Balcony 

falhng  over,  see  "Theatre." 

patron  falling  over 303 

Ballet-Dancing  \/ 

not  immoral 357,  379 

Bankruptcy 

actor  is  a  wage-earner 263 

distributor  not  a  "trader"  under  the  Act 261 

effect  on  contracts  for  literary  or  dramatic  productions 68,  69 

exhibitor's  contract  does  not  pass  to  trustee 227 

licen.se  does  not  pa.ss  to  trustee  in 263 

motion  picture  "trade"  or  "profession" 263 

right  to  title  of  work  pa.s»('8  to  trustee 464 

riglit  to  trade  mark  and  trade  name 465 

right  to  mark  and  device 465 

wit  h  respect  to  co[)yright 643 

Barring  Clause 

in  actor's  contract 107 


Index  879 

Belligerent  Aliens  paoe 

aK<'ncv  (iiiil  iKirtnorsliip 530 

(•()[)yrinlit  owned  hy  partners /i-'JO 

(•«)|)yrinli(  suspended 528 

ii)ay  Ik'  sued 528 

ownorsihip  of  copyright  in WO 

right  of  lic«'nst>c  to  sue 531 

right  of,  to  sue  on  their  copyright 528 

Benefit  Performances 

broach  l»y  theatre  owner 259,  260 

j)roceeds  devoted  to  charity 259 

when  license  required 2r»0 

Berlin  Convention 

of  I'JtMi— Text  in  Knglish 836 

of  1906— Text  in  French 858 

BUI 

see  "Conjplaint"  "Action." 

Bill  of  Particulars 

in  coi)yrinlit  action 599 

of  several  causes  of  action 599 

Bill-Poster 

immoral 377 

may  be  copyrighted 539 

Book 

scenario  copyrighted  as  a 540 

title  of,  not  i)rotected  by  copyright 403 

various  titles  of 440 

Booking  Agency 

power  to  l)in(l  producer  when  booking  actor 19t> 

with  respect  to  actors 17S 

Booking  Agreements 

circuit  aj;ent  for  thinitre  owner 25<) 

not  interstate  couunerce 258 


880  INDEX 

Booking  Agreements — Continued  page 

specific  performance  of 257 

theatre  owner  sued  by  manager 256 

when  interstate  commerce 261 

Book  Rights 

defined 26 

Booth 

regulations  with  respect  to 367,  368 

when  a  theatre  Hcense  required  for 340 

Bowling-Alley 

when  a  theatre  license  required  for 340 

Breach 

anticipatory,  by  producer 135 

of  actor's  contract  to  expose  to  obscenity,  ridicule,  degradation,  etc.  136 

of  contract  by  actor — damages 166 

of  contract  of  actor — number  of  causes  of  action 145 

producer's  offer  of  re-employment  after 15 1 

remedy  of  actor  for 146 

Burlesques 

copyright 54 1 

whether  infringement  on  copyright 537 

C 

Cabaret 

theatre  license  not  required 341,  348 

Canada 

copyright  in  Dominion  of 655,  660 

Cartoonist 

tardiness  ground  for  discbarge  of 158,  note 

Cartoons 

animated 469,  470 

copyright  in 536 

"dramatic  compositions" 538 


INDEX  881 

Cartoons  —CorUiniied  I'aue 

how  |)r<)to('te(l 400 

ill  conflict  with  play 405 

infringcmont  of  drariiatic  rights  in  .'>.S2 

Catalogues 

copyright  in .'i  10 

Censorship 

l)oar(ls  of 383 

extent  of  discretion  in  boards  of 390 

Kederal  Hoard 388 

in  general 383 

Certificate 

of  (dinri^ht,  as  evidence 598 

Chancery  Rule 

iiuniher  one  hundred  and  seven  followed  in  accountings  in  copy- 
right actions 024 

Chandelier 

dro[)[)inK  of,  lial)ility  for 311 

inspection  of,  no  defense 311 

Changes 

in  text  of  work  see  "Literary  Works"  and  "Author" 

Chapters 

of  a  work,  component  parts 545 

Charitable 

performance  violating  Sunday  statute 401 

Charitable  Entertainments 

not  reheved  from  olitaining  licenses 347 

see  "lieneht  Performances." 

Church 

distance  from  theatre 'S6A,  371 

license  refused  theatre  for  proximity  to 358 


882  INDEX 

Circulation  page 

right  of  restricted,  under  conunon  law 495 

Circus 

a  private  enterprise 385 

whien  a  theatre  Ucense  required  for 340 

Citizen 

may  secure  copyright 624 

see  "American  Citizen." 

Civil  Rights 

EngUsh  doctrine 272 

exclusion  from  theatres 295 

exclusion  from  theatres  for  race,  creed  or  color '.  296 

Federal  doctrine 272 

New  York  statute  prohibiting  use  of  name  or  picture 271 

use  of  name  or  picture  of  individual  prohibited 271 

Civil  Rights  Law  of  N.  Y. 

applies  to  "Weekly  News  Pictures" 285 

cause  of  action  personal 278 

consent — to  l)e  in  writing 275 

history  of 271 

infant  may  maintain  action 278 

name  used  without  consent  enjoined 275 

not  intended  to  prevent  dissemination  of  news 281 

picture  enjoined  where  plaintiff  had  not  posed 274 

remedy  at  law  or  in  equity 271 

right  not  possessed  by  persons  of  prominence 278 

right  not  possessed  by  criminals 279 

statute  strictly  construed 279 

use  of  name  or  picture  libelous 282 

use  must  bo  for  trade  or  advertising 271 

when  estopix'd  from  invoking  statute 281 

when  picture  libelous 272 

who  has  !il)and()nod  the  right 278 

who  liable  for  violation 278 

wholly  prospective 271 


INDEX  883 

Co-authors  page 

arc  tcniiiit.s  in  common    37 

composer  of  music  and  scenario  writer /VJ 

contract  of  co-aulliorship  not  ossignublc 51 

contract  of  co-autliorshii)  entire 51 

contracts  In'twocn  themselves 45 

contracts  l)et\ve<'n  themselves  and  publishers 45 

contracts  l)etwe<'n  themselves  and  publishers  are  for  personal  serv- 
ices       46 

effect  of  death  of  one 47 

elements  of  skill  and  confidence 48 

in  action  by  one,  all  to  be  joined 44 

in  action  by  one,  against  licensee,  others  need  not  be  joined 45 

in  general 35-45 

may  grant  rights  without  consent  of  co-author 37 

may  not  however  grant  exclusive  rights 38,  39 

may  not  destroy  rights  of  crwuithor 40 

may  not  be  eoiniH-iled  to  account 41 

may  sue  each  other  for  infringement  of  the  common  work 45 

not  co-i)art  iiers 42,  46 

not  joint-venturers 46 

partnership  bj'  s|M'eial  contract  dissolved  by  death  of  one 47 

test  as  to  what  constitutes 35 

Classification 

validity  of  copyright  not  affected  by 503 

Collaborators 

in  gi'iicnii  35— J5 

Combination 

of  1  heme  confers  copyright 534 

Combinations 

see  "Restraint  of  Trade." 

Comedy 

is  a  descriptive  title 408,  note 

Competition 

sec  "  I'lifair  Competition." 


884  INDEX 

Common  Errors  page 

as  a  test  of  infringement 573 

Common-law  Rights 

adverse  possession 494 

coincidence  as  a  defense 576 

conversion  of  manuscript — damages 499 

death  of  owner  of  manuscript 493 

enforceable  in  state  courts 493 

in  England 494 

in  United  States 494 

infringement 498 

in  general 491 

not  co-existent  with  copyright 496 

pass  to  purchaser  of  manuscript 493 

publication 495 

publication  in  England  not  necessarily  publication  here 510 

reserving  performing  rights 497 

what  is  publication 503 

what  rights  are  secured  to  author  under 494 

what  rights  are  secured  to  author  before  publication 495 

what  rights  are  secured  to  author  after  publication 495 

Common  Sources 

defense 568 

Compensation 

of  actor  an  element  in  granting  equitable  relief 104 

Complaint 

(Iciniirror  to,  on  copyright 594 

how  "deposit  of  copies"  pleaded 596 

motion  to  make  more  definite  in  copyright  action 599 

must  show  autliorship 597 

nmst  show  deposit 596 

must  show  registration 59() 

must  show  steps  taken  to  secure  copyright 594 

Compliance 

of  copyright  statute  as  to  notice 514 


INDEX  885 

Component  Parts  vac.b 

coin'riglit  in •'^'^ 

Composite  Work 

rciiowiil  of  copyriKlit ^' 

rcsiTving  rights  to  contribution  to 556 

Concert 

license  does  not  permit  stage  plays •^44 

when  a  theatre  Hceiisi-  r(>(iuired  for 339,  343 

Condition 

license  granted  on,  that  theatre  remain  closed  on  Sunday 3G0 

license  for  tlieat re  granted  upon 358 

Coincidence 

similarity  by ^'"^ 

Constitutionality 

of  censorship  statutes 384 

of  statutes  regulating  "ticket-scalping" 381 

of  statutes  requiring  theatre  licenses 345 

of  Sunday  statutes 399 

Contract 

anticipatory  lireach  l)y  producer 135 

breach  by  actor  where  services  are  special,  unique  and  extraor- 

dniary _ 

breach  of,  to  expose  actor  to  obscenity,  ridicule,  degradation,  etc.  130 

breadi  of  executory,  to  play  at  tlieatre 149 

breach  by  actor — damages 1<^G 

court  not  bound  l)y  provision  jus  to  liquidated  damages 107 

court  not  ousted  of  jurisdiction  by  provisions  in 190 

for  advertising -_ 

for  assigmnent  of  copyright  siJecifically  enforced 554 

for  rental  of  film  for  Sunday ^'^^ 

for  transportation  of  actor — damage 193 

ground-^  for  discliarge  of  actor 156 

law  governing  validity  of  actor's ■.".■■■■  ^^ 

lial)ility  of  producer  to  actor  where  studio  closed  by  authorities.  .  176 

liciuidated  damages  where  breach  by  acU)r !*>*> 


886  INDEX 

ContreiCt— Continued  page 

made  in  one  state  for  theatrical  production  in  another 261 

of  actor,  how  many  causes  of  action  for  breach 145 

of  actor — modification 142 

of  actor,  personal  in  its  nature 157 

of  actor  providing  for  "no  play,  no  pay" 132 

of  actor  providing  for  royalties  in  addition  to  salary 190 

of  actor  providing  for  sharing  of  profits  does  not  constitute  joint 

venture 1"^ 

of  actor — renewal l'*2 

producer's  offer  of  re-employment  after  breach  of 154 

providing  for  performances  in  unlicensed  theatre 192 

recovery  by  actor  where  substantial  performance 133 

recovery  on  a  quantum  meruit  where  actor  ill  or  dead 133 

remedy  of  actor  for  breach 146 

set-ofT  by  producer  or  distributor , 218 

set-off  of  moneys  received  by  distributor 218 

services  of  actor  to  be  "satisfactory"  to  employer 112 

stipulation  that  services  of  actor  are  unique,  not  binding 108 

tender  of  actor's  services  after  breach 147 

theatre  leases 237 

to  assign  copyright  may  be  by  parol 551 

where  contract  between  actor  and  producer  a  joint  venture 187 

with  actor  for  work  on  Sunday 125 

with  actor  must  be  mutual  to  be  enforcoalile  in  equity 102 

with  actor  providing  for  payment  only  when  "actually  perform- 
ing"     131 

with  infant  actors 173 

Contract  Labor  and  Exclusion  Laws 

with  respect  to  actor 1^1 

Control 

right  to,  publication 495 

sole  exclusive,  in  work  before  publication 495 

Co-Partnership 

copyright  may  be  taken  out  in  name  of 532 

Contrivances 

c<)|)yright  in 536,  538 


INDEX 


887 


Conversion  page 

predicated  on  wrongful  use  of  film 225 

Copy 

copyright  in  inferior 541 

inferior,  niuy  be  infringement •>i3 

right  to,  under  common  law 495 

right  to,  under  copyright ^^ 

right  to  permit  others  to,  under  common  law 495 

right  to  give  away  a,  under  common  law 495 

Copyright 

action  on,  where  brought 585 

ad  interim  protection 641 

advertisements 53G 

and  patent  rights  distinguished 481 

assignee  may  sue .  .  .  .  t • 577 

assignment  of 550 

assignment  and  license  distinguished 557 

bankruptcy — title  in  trustee 643 

belligerent  aliens 51-7 

bill  of  particulars 599 

bill-posters 539 

British,  Colonial  and  International 654 

burlesques 541 

cartoons 536 

catalogues 540 

certificate  of,  as  evidence 598 

changing  title  of  work 521 

common-law  rights 49 1 

common  sources 5o8 

component  parts 544 

contrivances 536,  538 


criticism . 


541 


distinct  from  right  in  material  work 554 

does  not  prevent  sale  of  physical  property 644 

duration  of 546 

editorials 539 

facts  to  be  alleged  and  proved 593 

failure  of  licensee  to  insert  notice 519 


888  INDEX 

Copyright — Continued  page 

false  notice  of 520 

gags 536 

government  publications 540 

how  secured 500 

immoral  and  seditious  works 536 

impUed  warranty  of  title  where,  is  assigned 557 

improper  name  on  notice 519 

inferior  copies 541 

infringement,  test  of 559 

intent  to  infringe 586,  591 

in  Commonwealth  of  AustraUa 655,  658 

in  Dominion  of  Canada 655,  660 

in  Dominion  of  New  Zealand 655,  659 

in  Newfoundland 655,  658 

in  Union  of  South  Africa 655,  660 

in  United  Kingdom  and  Protectorates 654 

international 672 

in  what  name  it  may  be  taken  out 532 

joinder  of  action  in,  with  action  in  Unfair  Competition 584 

joinder  of  causes  of  action 577 

knowledge  and  intent  not  necessary  to  infringe 588,  591 

knowledge  and  intent,  early  American  rule 589 

may  unite  cause  of  action  for,  with  Unfair  Competition 460 

method  of  obtaining,  for  motion  picture 500 

misjoinder  of  parties 577 

music  in  theatres 649 

new  matter 543 

newspaper 539 

not  always  lost  by  omission  of  notice 517 

not  co-existent  with  common-law  right 496 

notice  of 510 

object  of  granting 561 

of  lab(;ls  and  prints 739 

one  advantage  of 577 

parodies : 541 

perff)rinanc('  of  play  not  a  publication 497 

porfortriing  rights 497 

pliotographs  subjects  of 539 

jHioling 489 


INDEX  889 

Copyright  — Conlimied  pagk 

l)rcsiih>ntial  proclamations ^'^'i 

priiiKiry  tost  of  infringement 561 

proliihition  of  importation  of  piratical  copies (MO 

proprietor  must  sue 577 

publication  generally 494 

puljlic  domain 544 

Remedies 

account  ing ^23 

actions  at  law 626 

actions  in  equity — in  general 602 

actions  purporting  to  be  brought  under  Copyright  Act 628 

appeal 638 

construction  of  forfeiture  and  penalty  clauses 6."}6 

final  hearing 608 

injunction  as  to  part 619 

preliminary  injunction 602 

statute  of  limitations 6^^6 

willful  infringements 634 

writ  of  seizure 621 

renewal  of 547 

restrictions  in  re-sale  of  work 487 

return  of  copies  deposited 639 

ri'vised  edition 543 

right  to,  when  not  conveyed 583 

right  secured  by 499 

scenario 540 

selling  second-hand  copies 64b 

similarity  by  coincidence 574 

stage-business 536 

strict  coini)liancc  with  statute  necessary 593 

subjects  of 534 

taken  out  in  wrongful  trade  name 5.'J4 

taxability ♦>4-'< 

term  of 54b 

test  of  what  is  sul»ject  of 535 

title  not  protected  by 403 

uni)ui)lislied  works '. 54u 

us(>  of  title  after  expiration  of 4;iS 

validity  of,  not  alTected  l)y  classification 503 


890  INDEX 

Copjrright — Continued  page 

what  complaint  must  show 594 

what  is  publication t 503 

when  work  secured  by  prize  contest 88 

who  is  liable  for  infringement ; 586 

who  may  maintain  action 577 

who  may  secure 524 

Cop5rright  Act 

British,  of  1911— text 762 

Canadian,  of  1906— text 812 

United  States,  of  1909,  as  amended  by  Acts  of  1912,  1913,  1914— 
text 677 

Copjnight  Conventions 

of  United  States  and  Hungary — text 722 

of  United  States  and  other  American  Republics — text 725 

Copyright  Oflice 

rules  and  regulations  of  United  States — text 740 

rules  and  regulations  of  Canadian — text 833 

Corporation 

copyright  may  be  taken  out  in  name  of 532 

renewal  of  work  copyrighted  by 547 

Costs 

in  copyright  action 608,  616,  617 

Costumes 

of  actor 197 

Courts 

not  bound  by  stipulation  that  services  of  actor  are  unique 108 

Criminal 

knowledge  necessary  in,  proceedings 591 

Critic 

may  exclude,  from  theatre 295 


INDEX 


891 


Criticism  *'^''*'- 

not  infrintrement  of  copyright ^1 

of  plav.  wJien  a  libel ^^ 

private  exhibition  for,  under  common  law 495 

work  of  the  author ^ 

Crowds 

theatre  proprietor  must  provide  for  safety  of 318, 319 

Customs 

definition  of ^22 

how  pleaded 125 

in  theatrical  profession , 11" 

niiseeihineous,  in  theatrical  profession 123 

two  weeks'  custom H^ 

what  are 1 1^ 

D 

Damages 

actor  hound  to  mitigate 147 

breach  of  contract  by  actor 166 

contracts  for  transportation  of  actor 193 

conversion  of  manuscript 499 

evidence  of  experts  on  receipts  of  theatre 247 

in  copyright  action 608,  610 

in  unfair  competition 455 

liquidated,  breach  by  actor 166 

liquidated  damage  clause 152 

measure  of,  breach  of  actor's  contract 147 

measure  of,  failure  to  produce  film 220 

measure  of,  for  breach  of  contract  to  produce 216 

method  of  ascertaining,  on  producer's  default 220 

ordered  even  where  no  knowledge 592 

plaintiff  entitled  to  recover  actual  losses  as  a  part  of 151 

profits  as  a  basis  for 149 

prospective  profits  a  measure  of 149 

punitive,  awarded  for  jussiiult  of  patron  of  theatre 3;}1 

where  actor's  contract  sul)ject  to  two  weeks'  notice 121 

where  irreparable,  injunction  will  issue  against  actor 95 

where  stipulated  between  author  and  producer 83 


892  INDEX 

Dance  Steps  page- 

copyright  in 536 

Dance-halls 

regulation  of 346,  note 

Dancing 

distinguished  from  skating 341 

no  license  required  for 342,  343 

Date 

in  copyright  notice  may  be  in  roman  numerals 517 

Death 

of  actor  terminates  contract 164 

of  author,  as  affecting  right  to  renewal  of  copyright 549 

of  owner  of  common-law  rights  to  manuscript 493 

of  performer  of  troupe  cancels  contract 161 

Deception 

need  only  be  calculation  for 458 

Decree 

final,  in  copyright  action 618 

interlocutory  decree  ordinarily  entered  after  finding  of  infringe- 
ment    618 

Dedicated 

when  work  dedicated 497 

when  publication  of  story  in  magazine  is  a  dedication 556 

work  published  without  compliance  with  statute  is 506 

Defense 

by  producer  of  actor's  earnings  after  discharge 148 

in  copyright  action,  laches 608,  note 

of  coincidence 576 

of  common  sources 568 

offer  of  re-em[)loyment  to  actor  after  breach 156 

two  weeks'  custom — how  pleaded 125 


INDEX  . 893 

Degradation  page 

(■xp(xsnro  of  actor  to 136 

Deposit 

of  coi)ic.s  after  temporary  injunction 598 

of  copies,  how  pleaded 5!Xi 

of  copies  necessary  to  maintain  action 503 

of  title  and  description 500 

return  of  copies  deposited  in  coijyri^ht  oflSce 639 

to  he  made  i)romptly  after  publication 503 

Description 

deix)sit  of,  as  UDpublisbed  work 500 

Descriptive 

title,  not  protected 407 

Development 

of  t  heme  confers  copyright 534 

Devices 

sec  "Marks  and  Devices." 

Director 

his  rights  in  general 209 

Discharge 

aetor  must  seek  other  employment  after 147 

damages  recoverable  by  actor  for,  when  fixed  beforehand 165 

grounds  for,  of  actor 156 

of  actor  for  insolence 162 

of  actor  for  insubordination 162 

of  actor  for  drunkenness 163 

of  actor  for  non-adherence  to  union 164 

of  actor  for  his  failure  to  secure  proper  license  required  by  law.  .  lt>4 

of  actor  for  violation  of  provisions  of  contract 156 

of  actor  for  failure  to  appear  at  rehearsals 156 

of  actor  for  illness 157 

of  actor  for  incom|)ctoncy 158 

of  actor  for  "unsatisfactory"  services 112,  159 


894.  INDEX 

Discharge — Continued  page 

of  actor  for  immorality 162 

of  actor  for  incapacity  to  perform 157 

of  actor  equivalent  to  notice  where  contract  subject  to  two  weeks' 

notice 121 

see  "Actor." 

Discretionary  Power 

to  grant  theatre  licenses < 349,  351,  352 

Distances 

of  theatre  from  church  or  school 364,  371 

regulation  of  theatre  with  respect  to 362 

Distribution 

right  to  make  qualified,  under  common  law 495 

Distributor 

bankruptcy 261 

exhibitor  and,  licensee  and  licensor 225 

franchise  and  booking  agreements 256 

in  general 214 

interstate  commerce 260 

liable  with  producer  and  exhibitor 467 

libel 264 

may  enjoin  infringement  of  state  rights 222 

may  not  injure  high  standard 221 

may  restrain  producer  from  granting  other  "state-rights" 223 

must  release  regularly 222 

must  release  under  j)roducer's  name 222 

not  a  "trader"  under  Bankruptcy  Act 261 

not  entitled  to  mutilate  film 221 

of  film  liable  for  infringement 590 

replevin  of  film  and  machine 235 

to  bear  loss  for  dest  royed  film 226 

when  entitled  to  exploit  "state-right"  films 222 

Drama 

is  a  descriptive  title "^l*^ 

sec  "Play." 


INDEX  895 

Dramatic  Composition  page 

cartoons,  w hetlier  copyrightal>le  as 538 

common  sources 568 

infringements  of 562-56.') 

is  :i  cii'S(Tii)tive  title 408,  note 

rights  of  author,  whore  motion  picture  based  upon 1 

scenario  not  coj)\TiKlitcd  as 19-21,  540 

Dramatic  Entertainment 

a  motion  pict lire  exhil)ition  is  a 338 

motion  i)icture  held,  in  Sunday  statute 397 

when  license  rec|uired  for 338-343 

Dramatization  Rights 

assij^nniont  of,  carries  picture  rights 552 

author  of  magazine  article  reserving 555 

construing  "presentation  on  the  stage" 7 

construing  "dramatic  version" 8 

construing  "all  dramatization  rights" 5-9 

grant  of  "all  dramatization  rights" 5 

grant  of,  does  not  necessarily  divest  author  of  picture  rights.  ...  5 

in  cartoons  infringed 582 

in  uni>ul)lished  works 556 

licensor  may  reserve  stage  rights 10 

stage  rights  given  subsequently  to  picture  rights 9 

time  of  grant  ini|X)rtant  as  showing  intent 8-9 

when  in  unfair  competition  with  picture  rights 5 

when  motion  picture  rights  not  in  contemplation 2 

when  picture  rights  suspended 5 

when  suspension  perpetual 7 

when  they  include  motion  picture  rights 2 

Dramatize 

right  to,  under  common  law 495 

Dressing-room 

actress  hurt  in 310 

Drunkenness 

of  actor 163 


896  INDEX 

Duping  PAGE 

of  films 634 

"state-rights"  owner  not  to  "dupe" 224 

Duration 

of  copyright 546 

E 

Edition 

revised,  copyright  in 543 

Editorials 

copyright  in 539 

Employe 

rights  of  author  when  relationship  that  of 26 

when  author,  no  formal  assignment  of  work  necessary 27 

when  author  engaged  in  writing  only  incidentally 29,  34 

when  not  liable  for  infringement 590 

who  is  paid  salary  to  write  has  no  rights  in  work 32 

who  receives  profits  as  well  as  salary  has  no  rights  in  work 32 

who  is  paid  space  rates  has  no  rights  in  work 33 

Employer 

author's  works  vest  in,  as  soon  as  created 33 

rights  of  author  when  relationship  that  of  employe 26 

right  to  renewal  of  copyright 547 

when  deemed  proprietor  of  author's  work 27 

Engagement  of  Actor 

length 117 

English 

common-law  rights 494 

coi>yright 654 

war  copyright  statute 532 

Enticement 

of  actor 198 

Equitable 

owner  of  copyright  may  be  party 582 


INDEX  897 

Equity  page 

copyriKht  actions  in 602 

copyright  uftion  in,  may  be  pursued  concurrently  with  one  at  law  627 

copyritdit  action  in,  procedure  after  finding  of  infringement 618 

final  hearing  in,  in  copyright  action  608 

Escrow  Agents 

provision  in  actor's  (xjntract  with  respect  to 180 

Exchanges 

in  general 214 

Exclusion 

fmin  theatre,  see  "Theatre." 

Exemplary  Damages 

for  infringement  of  common-law  rights 498 

Exhibitor 

atlvort  ising  matter 228 

banknii)tcy 261 

benefit  jx^rformancea 258 

biIl-iH)sters 228 

distributor  and,  licensor  and  licensee 225 

exhibition  of  motion  picture,  how  proved 598 

fixtures 232 

f randiise  and  booking  agreements 256 

in  general 214-225 

interstate  commerce 200 

liable  with  i)roducer  and  distributor 467 

libel 264 

hbelous  film,  tort  feasor 226 

may  enjoin  licensor  for  violation  of  exclusive  grant 227 

must  pay  for  film  though  thewtre  closed 226 

of  fihn  liable  for  infringement SIX) 

j)rivate  exhibitions 258 


pn)Knim8 . 


228 


replevin  of  film  and  maclune •. 235 

theatre,  when  a  nuisance 251 

theatre  leasc-s 237 

when  not  entitled  to  specific  performance  of  exclusive  gnint  228 


898  INDEX 

Exit  PAG^ 

may  open  on  an  alley 367 

patron  injured  at,  of  theatre 306 

rear  exit,  no  right  to  leave  by 310 

regulations  as  to 369 

Expression 

copyright  in  form  of S60 

Extraordinary 

injunction  against  actor  where  services  are 95 

where  services  of  infant  are 173 

Extra-territorial 

effect  of  publication 510 

F 

Facts 

which  must  be  alleged  and  proved  in  copyright  action 593 

Farce 

is  a  descriptive  title 408,  note 

Feature 

elaborating  two-reel  into 544 

Film 

all  who  handle,  liable  for  infringement 590 

considered  inflammable 367,  note 

exhibition  of,  how  proved 598 

importation  of,  may  be  censored 389 

lessor  of,  proper  i)arty  to  action 578-579 

lessee  of,  proper  party  to  action 578-579 

restrictions  on  use  of 485 

sale  of,  (loos  not  cdnvey  copyright 555 

Final  Hearing 

in  copyriglit  action 608 

Fire 

film  destroyed  by 226 


INDEX  899 

File — Continned  pack 

in.sportion  of  theatre 3<>8 

regulations  with  rospoct  to  theatres ;j(>3 

Fire-escapes 

of  t Ileal  rn 369 

Fire-extinguishers 

nunlatioiis  for  theatres 369 

theatre  proprietor  must  provide 319 

Fireman 

may  inspect  theat  re 368 

who  |)ays,  for  supervision  of  theatre 368 

Firm 

copyriplit  may  be  taken  out  in  name  of 532 

First-class  Theatres 

curtain  displays 230 

distributor  may  not  lease  to  cheaper  house 221 

is  motion  picture  house  a 238-239 

I)icture  to  be  produced  in 74 

with  respect  to  leases 237 

Fixtures 

actions  to  enforce  mechanic's  lien  on 233 

balust  rades 235 

borders 235 

carpets 235 

carousel 235 

chairs 232 

clock 235 

combination  closet 235 

curtains 235 

dance  floors  (portable) 235 

dn)p  curtain 234,  235 

Ras  ai)plianccs 233 

lighting  appliances 233,  234 

oilGttcr 2?.3 


900  INDEX 

Fixtures — Continued  page 

piano 235 

scenery 234 

settees 235 

special  scenery 234 

stage-fittings 234,  235 

switchboard 234 

ticket-booths 235 

wings 235 

wires  (electric) 234 

with  reference  to  theatre  buildings 232 

wrenches 235 

Foreign  Work 

plays  based  on,  in  pubUc  domain 569 

Forfeiture  and  Penalty  Clause 

in  copyright  statutes 636 

non-payment  of  royalties 84 

of  license,  for  failure  to  pay  roj^altics 84 

of  license,  for  insufficient  performances 87 

of  license,  for  non-production 87 

Forgery 

to  print  theatre-ticket  wrongfully 383 

Franchise  Agreements 

see  "Booking  Agreements." 

Fraud 

in  Unfair  Competition 455 

justifying  rescission  by  author 90 

justifying  rescission  by  producer JX) 

must  be  proved  in  actions  at  law  for  Unfair  Competition 469 

G 

Gags 

copyright  in 536 

Garnishment 

of  salary  of  actor 184 


INDEX  901 

Gestures  •'^^^ 

(•()pyright.  in .  .  S36 

Government  Publications 

copyright  in ^^ 

Great  Britain 

copyrijilit  in "^ 

see  "English." 

Guarantee 

of  royalties 79-80 

H 

Hats 

regulations  as  to  removal  of 367,  note 

Historical  Work 

rights  of  rmthor  where  motion  picture  based  upon H 

when  j)r<>tecte<l  as  original  work 14-15 

Horse-race 

exhibition  license  required  for 340 

Hungary 

copyright  convention  with  United  States — text 722 

I 

Ideas 

no  copyright  in 560 

Illness 

of  actor 157 

Imitation 

not  infringement 542 

whether  infringement  on  copyright 537 


^■"-•^^  Immoral 


advertising  matter  in  genenil  and  |)<)sters  where  suggestive 377 


902  INDEX 

Immoral — Continued  page 

ballet  dancing  not 357,  379 

copyright  will  not  be  secured  in  work  which  is 535 

exhibitor  need  not  pay  for  film  which  is 226 

immorality  of  actor 162 

need  not  be  exposure  of  person 373 

preventing  exhibition  of  picture  which  is 353 

prize-fight • 379 

prohibition  of  pictures  which  are 372 

race  prejudice  aroused 357,  379 

seditious  works  will  have  no  copyright 535 

see  "Literary  Works." 

title  suggestive 377 

war  pictures  suppressed 357 

Impersonation 

infringement 542 

Implied  Covenant 

of  warranty  of  title  in  copyright 557 

Importation 

of  films  subject  to  censorship 388-389 

prohibition  of,  of  piratical  copies 640 

Incompetency 

immortality  of  actor 158 

of  actor  not  equivalent  to  dissatisfaction 113,  159 

Independent  Contractor 

whon  author  is 27-29 

when  author  retains  rights 27 

Individual 

copyriglit  may  be  taken  out  in  name  of 532 

Infants 

admission  of,  to  theatre 370 

contracts  with  infant  actors 173 

"guardian"  might  refer  to  neighbor  or  friend 370,  note 


INDEX  9(J3 

Infants— Cnnlimted  page 

iiuibility  to  enforce  negative  covenant  against 173 

may  hih'  for  violation  of  civil  rights 278 

iiiisdcmoanor  in  New  York  to  oniploy  infant  actors 175 

no  injunction  for  breach  of  amtract IfHi 

Inferior  Part 

actor  not  required  to  play 139 

Infringement 

criticism 541 

defense  of  cxjmmon  sources 573 

for  licensee  to  overstep  his  grant 593 

in  cartoons 582 

intent 580 

joinder  of  causes  of  action  for 5/7 

knowle<lgc  anil  intent,  early  American  rule 589 

may  be,  of  one's  own  work 592 

misjoinder  of  parties  in  action  for 577 

must  be  of  "substantial  and  material  part" 502 

of  common-law  rights •   •198 

of  co{)yright,  generally 559 

of  copyright,  when  film  used  at  wrong  time  and  place 225 

of  plays 502-505 

I)lainf  ifT  n(H'd  not  wait  until  actual -159 

primary  test 501 

I)rivate  exhibition  not  an »^*8 

cjuotations 54 1 

submission  of  manuscripts  considered  on 591 

test  of 542,  559,  501 

titles  held  not  to  infringe  in  unfair  competition 445 

titles  held  to  infringe  in  unfair  comf)etition 440 

who  is  lial)le  for,  of  copyright 580 

will)  may  maintain  action  for 577 

willful 634 

Infringer 

failure  to  record  assignment  will  not  avail 553 

Inflammable 

films  c.«)nsidered  as 307,  note 


904  INDEX 

Injunction  page 

against  infant  actor 173 

as  between  licensee  of  author  and  of  publisher 13 

as  to  part  in  copyright  action 619 

by  producer  against  actor  where  services  are  special,  unique  and 

extraordinary 95 

cannot  maintain  for  violation  of  Sunday  laws 399 

deposit  of  copies  after  temporary 598 

for  infringement  of  common-law  rights 498 

in  unfair  competition 453 

laches,  a  defense  to,  in  copyright  action 608,  609 

not  granted  against  infant  actor lOG 

pendente  lite  against  actor  where  services  are  special,  unique  and 

extraordinary 108 

pendente  lite,  more  readily  granted 92 

permanent,  in  copyright  action 658 

preliminary,  more  liberally  granted  in  copyright  actions 602 

preliminary,  in  copyright  action 602 

procedure  where  order  is  disobeyed 112 

producer  may  enjoin  use  of  other  name 222 

threatened  invasion  of  copyright  sufficient  to  entitle  to  preliminary  602 

without  accounting  in  unfair  competition 452 

Injunction  Pendente  Lite 

discretionary  with  court  in  case  of  actor's  contract 109 

see  "  Prdiminary  Injunction." 

Insolence 

of  actor 162 

Insubordination 

of  actor 162 

Intellectual  Conceptions 

no  c()r)yright  in 560 

Intent 

I'iirly  American  rule  for,  as  to  infringement  of  copyright 589 

in  nrifair  cotnixtition 456 


INDEX  905 

Interest  page 

riKht  to  soli  or  assign,  at  common  law 495 

.sole  cxflusivi',  in  work  bcforr  publication 495 

International  ^ 

cupyrinlit  672 

copyriniit  — ttxt  of  Hiriu-  ("(invention  of  1908 — in  English 83<i 

copyrinht— text  <jf  Heme  Convention  of  1908 — in  French 858 

Interstate  Commerce 

contracts  macic  in  one  state  for  production  in  another 261 

in  certain  films  prohiliited 388 

shijunent  of  films 2G1 

whether  theatricals  come  witliin 2G0 

Intoxication 

of  actor 163 

J 

Joinder 

cause  of  action  in  copyright  with  one  in  unfair  competition 584 

of  licensee  as  co-plaintiff ^ 578-580 

Joint  Venture 

contract  between  actor  and  producer  for  sharing  of  profits  not  a   168 

re<iuirenient  of  good  faith  in  acts  of  parti**  to 189 

when  contract  between  actor  and  jjroducer 187 

Jurisdiction 

of  courts  not  ousted  by  provisions  in  actor's  contract 190 

L 

Laches 

a  bar  to  preliminary  injunction  in  copyright  action 607 

defense  in  copyright  action 608,  note 

in  unfair  competition 449 

not  I'ljuivalent  to  mere  delay  in  time  in  copyright  action Ii07 

Law 

actions  at,  in  unfair  c<imi)etition 468 

contract  labor  and  exclusion 191 


906  INDEX 

Lease                                                                          ^^  page 

theatre  leases  in  general,  see  "Theatre  Leases." 
when  distributor's  contract  a 221 

Lecture 

rights  of  author  where  motion  picture  based  upon 15 

Legal  Title 

defendant  estopped  from  attacking 583 

in  infringer 5°2 

Legibility 

of  notice  of  copyright 513 

Lessee 

of  film  proper  party  to  action 578-579 

Lessor 

of  film  proper  party  to  action 578-579 

of  theatre  liable  for  infringing  performance 587 

Letters 

of  alphabet  not  protected  as  trade-marks 463 

Liability 

for  copyright  infringement 586 

of  lessor  of  theatre  for  infringing  porforiTinncc 587 

of  those  who  handle  film  for  copyright  infringement 590 

state  oflBcers ^^^ 

Libel 

criticism  of  work  of  author 63 

film  containing,  makes  exhibitor  tort  feasor 226 

limits  in  criticism  of  play """ 

of  actor 202 

of  actor  whore  irtiproiKT  form  of  billing  or  type  used 203 

of  actor  where  mutilation  of  motion  picture ' '  1 

to  accuse  manager  of  fraud,  insolvency  and  embezzlement.  .  .26}-2()5 

to  allege  production  to  be  immoral 264-26.) 

use  of  name  in  a  "  white  slave"  film 28^ 


INDEX  9()7 

Libel — Cnrilinurd  pagb 

UKO  of  portrait  with  julvcrtisoracnl  28.'{ 

works  of  a,  JilnJous  nature 73 

License 

iirui  assipririKnt  f)f  copyright  distinguished '>.'37 

const  nift ion  of,  one  of  law  for  court 7 

corporation  charter  does  not  remove  necessity  for  obtaining.  . .  .  347 

distinction  between  assignment  and 71 

does  not  pass  to  trustee  in  bankruptcy 263 

excUisive,  an  assignment 582 

exclusive,  is  assignment  of  copyright 558 

exclusive  grant  rc(|iiired  to  restrain  invasions 6 

exciusivcness  not  presumed 6-7 

exclusive,  for  dramatic  production  of  play 2 

exhibition,  re(iuired  for  horse-racing 340 

extent  of  discretionary  power  to 3ol-352 

fees  excessive 352 

forfeiture  of,  for  failure  to  pay  royalties 84 

granted  on  condition  that  theatre  remain  closed  Sunday 360 

may  not  be  withheld  after  building  erected 36.3 

municipality  est()|)ped  from  suing  for  fees 347,  note 

no  custom  that  license  is  necessarily  an  exclusive  one 124 

necessity  for 345 

necessit}' for  license  of  motion  picture  exhibitions.  337-343 

of  stage  rights  bars  picture  rights 3-5 

of  theatre,  in  general 337 

penalties  imposed  for  failure  to  procure  theatre 346 

performance  of  actor  in  unlicensed  theatre 192 

power  to,  discretionary 349 

p(nv('r  to,  may  be  delegated 350 

refused  for  |)roximity  to  church  or  .school 358 

right  of  author  to  make  motion  picture  after  granting  exclusive   .  2 

riglit  to,  on  condition ;}')S 

statutes  reciuiriiig,  constitutional 345 

terminated  for  failure  to  give  requiretl  number  of  performances.  .  87 

terminated  for  failure  to  produce  work  in  time 87 

theatre,  not  re(|uired  for  cabaret 341 

theatre,  not  requiriHl  for  skating-rink 341 

theatre,  requireil  for  circus 340 


908  INDEX 

License — Continued  page 

theatre,  required  for  concert 339,  343 

theatre,  required  for  opera 340 

theatre,  required  for  pantomime 339 

theatre,  required  for  aquarium 340 

theatre,  required  for  booth 340 

theatre,  required  for  bowUng-alley 340 

theatre,  required  for  singing 339,  342 

to  operate  theatre  may  be  oral 347 

theatre,  required  for  museum 340 

theatre,  and  liquor  license 361 

theatre  ticket  a  revocable 292 

theatre  ticket  not  revocable,  under  English  rule 297 

time  of  grant  of  dramatic  rights  important  as  showing  intent ....   8-9 

to  exhibit,  purely  personal 227 

unless  exclusive,  may  be  given  to  others 73 

validity  of,  not  to  be  questioned  by  licensee 592 

when  violation  of,  entitles  owner  to  replevin 235-236 

^-  where  author  grants  sole  and  exclusive 73 

_^  where  author  grants,  with  limitations 74 

License  Fees 

exhibitor  must  pay,  though  theatre  closed 226 

Licensor 

copyright  of,  not  to  be  questioned  by  his  licensee 592 

distributor  usually,  of  exhibitor 225 

express  covenant  not  to  produce  i)lay 10 

his  picture  rights  suspended  by  sale  of  dramatic  rights 7 

implied  covenant  not  to  produce  picture 4 

may  maintain  replevin 237 

may  reserve  stage  rights 10 

may  sue  third  parties 92 

unless  exclusive,  may  grant  to  others 73 

when  estopjKid  from  granting  picture  rights 2 

Licensee 

exclusive,  may  enjoin  others 74 

exclusive,  may  enjoin  liis  licensor 74 

exclusive,  of  part,  of  rights  may  sue 581 

exhibitor  usually,  of  distributor 225 


INDEX  909 

Licensee — Continued  page 

failure  of,  to  insert  notice  of  copyright 519  < 

joininl  U.S  co-pluintifT 678-580 

joininK  proi)rii'(()r  in  unpublished  work 584 

may  •><'  enjoined  fnmi  tnutiliiting  work 59 

may  not  question  liis  licensor's  copyright 592 

may  not  willihold  royalli«>;<,  when  thin!  party  infringee 82 

may  rej-truin  invasions  only  when  exclusive 6 

need  account  only  to  one  co-author 42 

netnl  not  be  joinc<l  in  action  between  them 43 

of  "all  dramatization  righta"  secures  picture  rights 5 

of  belligerent  ali«'n,  right  to  sue •- 531 

of  copyright  must  join  proprietor 578-580 

of  copyright  proi)riet<jr,  right  to  sue 577 

of  one  co-author  cannot  be  sued  by  other  co-author 44 

of  publisher  may  enjoin  licensee  of  author 14 

where  rights  of  exclusive,  not  infringed 580 

who  oversteps  his  grant  an  infringer 593 

Liquidated  Damages 

(Courts  not  bound  by  provision  as  to 107 

in  author's  contract 83 

in  theatre  lease 242 

where  breach  by  actor 166 

Liquor  License 

consent  reijuire*!  for 361 

theatre  proprietor  may  be  required  to  obtain 360 

Literary  Works 

abaiiiloiuiicnt  of  contract  to  write 77 

authors  may  infringe  their  own 592 

author  must  refund  for  failure  to  deliver  work  on  time 76 

author  liable  in  damages  for  failure  to  deliver  manuscript 76 

cannot  part  with,  and  retain  title 464 

changes  in  text .' 53 

changes  in  text  by  outright  purchaser 54 

changes  in  text  by  licensee 54 

common-law  right,s  in 491 

contnict  for  several,  bn'ach  with  respect  to  one,  breach  of  entire 

contract '7 

contract  for,  whether  specilically  enforced 92 


910  INDEX 

Literary  Works — Continued  page 

copyright  in  component  parts 544 

criticism 63 

criticism  of,  when  a  hbel 63 

criticism  may  embody  ridicule 63 

criticism  of,  limits 64 

fixing  values  of 78 

identity  to  be  preserved 57 

^»mm    immoral  and  seditious  have  no  copyright 535 

in  public  domain 544 

is  published  when  "exposed"  to  pubUc 506-508 

libelous,  immoral  or  seditious 73 

licensee  may  be  enjoined  for  mutilation 56 

limitations  on  use  of 74,  481 

need  not  be  produced  unless  so  contracted 89 

no  right  to  make  changes  in  serial  works 57 

not  produced  at  time  specified 75 

of  any  degree  of  inferiority  copyrightable 534 

outright  purchaser  may  be  sued  in  libel  for  mutilation 54 

outright  purchaser  may  be  enjoined  in  certain  cases 56 

performing  rights 497 

producer  entitled  to  maintain  high  standard  of 221 

producer  may  waive  performance 76 

protected  like  other  species  of  property 405 

publication  of,  rights  prior  and  subsequent  thereto 494 

restrictions  on  sale  of 487 

revised  editions 543 

rights  of  author  in 1 

rights  secured  under  copyright 499,  500 

sale  of,  not  assignment  of  copyright 554 

Kolc  and  exclusive  licenses  in 73 

specific  performance  for  writing  of 92 

title  of,  how  protected 404 

to  be  produced  at  definite  time 75 

when  to  be  written  to  satisfaction 73 

whether  work  must  be  produced 89 


^^^ 


^iving-Pictures  " 

infririgcH  uimjh  cartoons 538 

infringement  of 589 


INDEX  911 

M  PAGE 

Magazine 

assiKiiinent  of  copyright  to  proprietor  of .'555 

various  titles  of 441 

whrii  pn>i)ri<'t<)r  holds  as  trustee  for  contributor 16,  17 

whrii  lillc  of,  h(!lii  a  triule-tnark UM 

Magazine  Rights 

licfined 26 

Make-Up 

copyrinht  in ' 536 

Manufacturer 

of  film  liable  for  infringement 590 

Manuscript 

author  may  recover  for  conversion 88 

author  may  enjoin  wrongful  iKJSsessor 88 

author  need  not  tender,  on  pn)ducer'8  default 76 

converted,  damages  for 499 

damages  for  failure  of  author  to  deliver  balance 76 

of  author  lost  after  submission 87 

submission  of,  may  be  considered  on  infringement 591,  note 

Marks  and  Devices 

adopted  by  producers  and  distributors 460 

iLSsignability 465 

in  unfair  competition 400 

ripht  to,  and  to  title  distinguished 466 

Master 

reference  to  a  m:L'<fer  in  copyright  action  after  finding  of  infrinKe- 
ment OlS 

Master  and  Servant 

no  fonnal  assignment  fn)m  author  necessary 27 

when  employer  deemixl  |)roprietor  of  author's  work 27-32 


912  INDEX 

Material  page 

part  of  work  must  be  taken 562 

Misjoinder 

of  parties,  how  raised 584 

Motion  Picture  Rights 

see  "  Dramatic  Rights." 

Multiply 

exclusive  right  to,  copies  of  work 495 

Municipality 

power  to  erect  theatre 364 

Museum 

when  a  theatre  license  required  for 340 

Music 

abandonment  of  dramatic  rights  by  sale  of  libretto, 52 

composer  and  scenario-writer  co-authors 53 

essence  in  hbretto  rather  than  in  orchestral  accompaniment.  ...  52 

incidental  to  picture  not  dramatic  composition 52 

in  theatres  with  respect  to  copyright 649 

when  owner  of  words  may  sue 582 

where  specially  composed  for  picture 51 

Mutilation 

of  motion  picture 171 

Mutuality 

of  contract  with  actor  necessary  to  secure  injunction 102 

N 
Name 

copyright  propriotor  must  have  lawful  right  to  use 533 

in  what,  copyright  may  be  taken  out 532 

no  common-law  right  to  prevent  use  of 270 

of  author <>() 

of  author  a  property  right 61 


INDEX  913 

Name — Conlimuil  pagr 

of  play,  i)icture  or  lxx)k  protected  a&  trade  namo.  107,  note 

one's  own,  when  not  ussif^nablc 477 

right  to,  under  roninion  law 4Q5 

when  ex^'oufor  may  not  luwign 480 

Negative  Covenant 

ill  actor's  coiitraet yQ 

to  write,  enforced 71 

to  wTite,  unique,  special  and  extraordinary 72 

Negative  Print 

outright  sale 215 

shipment  of,  interstate  commerce 261 

Negro 

excluding  from  theatre 298,  328 

Newfoundland 

copyright  in 655,  658 

New  Matter 

entitled  to  cop\Tight 543 

of  work  in  public  domain 544 

News  Item 

rights  of  author,  where  motion  i)ic'ture  i)ased  upon 23 

when  held  out  as  facts,  in  public  domain 23,  24 

when  held  out  as  fiction,  may  not  be  appropriated 24 

Newspaper 

action  against,  on  serial  right^s 580 

copyright  in 539 

do  not  come  within  Civil  Rights  Statute 281 

injunction  against,  from  printing  plot  of  play  before  premiere.  .  .  607 

not  a  private  enterprist> 386 

right.M  of  author,  where  motion  picture  based  upon  item  in 23 

"Syndicate  Highta"  defined 26 

various  t it les  of 44O 

"  Weekly  News  Pictures"  not  classifuil  lus 285 

when  proprietor  holds  aa  trustee  for  contributor 16,   17 


914  INDEX 

New  Zealand  page 

copyright  in  Dominion  of 655,  659 

Nom  de  Plume 

copyright  taken  out  in 533 

when  its  use  may  be  enjoined 60,  61 

when  a  crime  to  suppress  name 61 

Notice 

abbreviations 516 

date  may  be  in  Roman  numerals 517 

false,  of  copyright 520 

false,  must  contain  elements  of  valid 521 

form  of 511-513 

legibility 513 

meaning  of 513-515 

need  not  be  on  copies  deposited 513 

no,  required  on  unpublished  works 510 

of  copyright,  in  general 510 

of  discharge  necessary  to  be  given  actor 164 

omission  of,  by  accident  or  mistake 517 

on  motion  picture  need  not  include  year 512 

on  prints  for  foreign  shipment 519 

on  published  works,  required 511 

on  work,  after  renewal  of  copyright 549 

purpose  of 513-515 

registered  trade-mark  no 462 

rule  of  "substantial  compliance" 514 

superfluous  words 516 

to  infringer  in  unfair  competition 457 

where  placed 512 

Novel 

author  may  prosecute  publisher  for  breach  of  trust 13 

owner  of  copyright  alone  may  dramatize 12 

purchase  of  jMcturc  rights  from  pubHsher 12 

rights  of  author  where  motion  picture  based  upon 11 

title  of,  when  in  ronflict  with  title  of  play 434 

Novelize 

right  to,  under  copyright 500 


INDEX  915 

O 

Obscene  page 

s«H'  "Immoral." 

Obscenity 

cxpusurc  of  actor  to 136 

Opera 

when  ;i  tliivitrc  license  required  f(jr 340 

Operator 

regulations  with  respect  to 367-368 

Orchestra 

space  in  roar  of  is  "aisle" 3tHj 

Order  in  Council 

of  ( '.reat  Britain,— Text,  of  February  3,  1915 732 

Original 

work  need  not  be  altogether,  to  be  copyrighted 534 

Owner 

equitable  owner  of  copyright 582 

P 

Panic 

lialiility  of  theatre  proprietor 312,  317 

Pantomime 

immoral  exliibition 357,  note,  373,  note 

when  a  theatre  license  required  for 339 

Parodies 

copyright 541 

no  infringement  of  copyright 5^37 

Part 

"substantial  and  material.  "  must  bo  taken  to  be  infringement.        r)('>2 


916  INDEX 

Parties  page 

action  in  unfair  competition  against  one  bar  as  to  other 468 

misjoinder  of 577 

to  action  in  unfair  competition 467 

when  officers,  directors  and  employes  Hable 468 

Patent 

copyright  and  rights  under,  distinguished 481 

history  of  control  and  dissolution  of  motion  picture  combination  487 

pooling 488 

purpose  of  patent  laws 486 

restrictions  after  expiration  of 485 

Penalties 

for  infraction  of  fire-regulations 369,  note 

knowledge  and  intent  necessary  to  recover 591 

liability  for  Sunday  performance 400 

see  "Liquidated  Damages." 

seller  liable  in  unfair  competition 443,  note 

who  liable  for 379 

who  liable  for,  in  copyright  infringeifient 586 

Pendente  Lite 

injunction  against  actor 108 

see  "Injunctions,"     "Preliminary  Injunction." 

« 
Performance 

of  actor  prevented  by  illness  or  death 133 

of  contract  to  write  within  specified  time 75 

of  i)lay  not  a  publication 497 

of  un[)ublishcd  works  a  crime 635,  note 

private  exhil)it  ion  not  a 588 

.substantial,  by  actor 133 

Performer 

sec  "Actor." 

Performing  Rights 

in  utii)iibliHh('(i  work  vest  statutory 497 

not  giv(!n  under  early  Htututes 497 


INDEX  917 

Performing  Rights — Continued  vkqt. 

reserved  hy  author ■*'J7 

right  uf ,  under  copyright •'3'X) 

Periodical 

nscrvinn  dnimiili/.iitioii  rights  in  contribution  to.  555 

when  proprietor  holds  as  trustee  for  contributor 10-17 

Photographs 

infriiif^einent  to  iiuike,  of  sculpture 539 

may  be  coiJvri^hted 539 

no  coninioii-law  right  to  prevent  use  of 269 

on  post  cards 270,  note,  277 

Piratical  Copies 

I)rohibition  of  inij)ortation  of 640        ^^ 

Play 

copyrighting  motion  picture  which  is  not  a  photo 501 

grant  of  prochicing  rights  in 1 

in  condiet  with  cartoons 405 

infringf'ineiit.s  of 562-565 

is  a  descrijjtive  title 408,  note 

perfonnance  of,  not  a  publication 497 

title  of,  not  protected  by  copyright 403 

title  of,  and  title  of  book 434 

to  be  written  to  "siifisf action"  of  manager 115 

unfair  competition  between  titles  of 443 

value  of,  how  estimated 78-79 

Playwright 

right  to  retain  identity  of  hia  work 172 

see  "  author." 

Plot 

iiifriiigeineiit  by  expanding 5tj0 

Poem 

rights  of  author  wheR>  motion  picture  based  upon 15 

Policeman 

may  inspect  theatre 368 


918  INDEX 

Police  Power  page 

Sunday  closing 399 

see  "License,"  "Regulation." 

Positive  Prints 

in  general '■ 215 

shipment  of,  interstate  commerce 261 

Preliminary  Injunction 

in  copyright  action 602 

laches  a  bar  in  copyright  action 607 

may  be  suspended  upon  certain  conditions  in  copyright  action  .  .   606 
newspaper  prevented  from  publishing  plot  of  play  before  premiere  607 

not  binding  on  trial  court  in  copyright  action 618 

on  whom  binding  in  copyright  action 606 

when  temporary  restraining  order  granted  in  copyright  £lction  .  .    605 
will  not  become  effective  in  copyright  action  until  security  given  605 

Presidential  Proclamations 

see  "  Proclamations." 

Prevent 

right  to,  publication 495 

Price-Fixing 

in  general 481 

Print 

right  to,  under  common  law 495 

Privacy 

Bee  "Right  of  Privacy." 

Private  Enterprise 

circus  is  a 385 

Triotion  picture  business  a 385 

ncwH[)aper  not 386 

tli(;atrc  a 385 


INDEX  Olii 

Private  Exhibitions  i'A'.k 

hnacli  !)>  llicutre  owner -•'>■' 

for  criticism,  under  common  law 490 

not  infriiincincnUs •'iHS 

procoe<l.s  devotcil  to  clmrily 259-'2W 

right  of,  under  common  law 1-*-'» 

when  hcense  required '-''" 

when  hccnso  not  required -'J^J 

Private  Reading 

right  of,  under  common  law 495 

Prize  Contest 

when  work  secured  by  means  of 88 

Prize-Fight 

interstate  shipment  prohibited 388 

picture  of,  not  permitted 379 

F*rocedure 

iJter  finding  of  infringement  in  copyright  action 018 

proceedings  for  injunction,  damages,  profits  and  those  for  seizure 

of  infringing  copies  and  plates  may  be  united  in  one  action.  til'.t 

Proclamations 

of  rresident  to  determine  reciprocal  rights 525 

presidential,  itcmizinl "10 

presidential— text  of  April  9,  1910 719 

presidential— text  of  July  13,  1914 725 

presidential — t<»xt  of  Januar>-  1,  1915 735 

Producer 

author's  work  to  be  done  to  satisfaction  of 73 

entitie<l  to  have  films  released  n-gularly 222 

his  ('mployes  other  t  ban  actor '^^ 

liable  with  distributor  and  exhibitor 467 

may  be  enjoined  fn)m  granting  other  "state-rights"  .  223 

may  enjoin  licensor ^'- 

may  insist  on  projxjr  ailvertising  '--- 

mav  msist  on  use  of  his  name  


920  INDEX 

Producer — Continued  page 

may  replevy  film  for  unpaid  "  state-righta  "  royalties 224 

negligence  in  handling  manuscript 88 

negligence  not  predicated  in  certain  cases 88 

not  required  to  produce  work  unless  so  contracted ....-- 89 

with  relation  to  actor — see  "Actor." 

with  respect  to  director  and  other  employes 209 

with  respect  to  scenario  writer 205 

work  to  be  done  to  his  satisfaction 73 

Professional  Scenario  Writer 
see  "Scenario  Writer." 

Profits 

accounting  of,  in  copyright  action '. 608 

as  a  basis  for  damages 149 

percentage  of,  to  author 77 

prospective,  as  a  measure  of  damages 149 

to  star 215 

when  speculative 79,  216 

Prohibition 

not  included  in  regulation 371 

Proof 

required  in  copyright  action 593 

Property 

lost  in  theatre 335 

Proprietor 

joined  with  licensee 578 

joining  licensee  of  unpublished  work 584 

of  theatre,  when  li;ih!e  to  patron 331 

of  thentre,  when  liable  for  acts  of  utage-hand 334 

of  theatre,  when  liable  for  acts  of  other  employes 335 

of  theatre,  liabiUty  for  act  of  manager 197,  note 

Public,  The 

duty  of  theatre  proprietor  to 291 

injuries  suHtainiu]  by  |)utron.s  of  theatre 299 


INDEX  021 

Public,  The—Cotitiniwd  pao" 

license  of  tlu'ntre  in  general  -i-'i" 

priviicy '^^ 

rcnuhit  ion  of  theatres 362 

rinlit  to  I'xcliide  patrons  from  theatre 291 

right  of  privacy 267 

Publication 

(late  of  first  sale  is  date  of •'*<i^ 

deposit  of  eoi)ies  to  he  made  pron)ptly  after 503 

exclusive  right  of,  under  copyright 500 

ill  I'.iigland  may  not  constitute,  in  United  States 510 

in  Europe 507,  508 

of  work  secures  copyright 502 

performance  of  play  not  a 497 

rentals  or  leases  constitute 504 

rights  in  work  before 495 

rights  in  work  after 495 

right  to  first .495 

siinultan(H)us,  in  United  States  and  British  Dominions 654 

t«Tin  of  copyright  from 546 

what  is 503 

when  title  of,  held  a  trade-mark 467 

Public  Domain 

and  copyright ^44 

foreign  work  in 569 

new  matter  protected,  of  work  in 544 

title  fails  into,  with  work 438 

title  of  work  in,  protected  .  407 

translations  of  works  in 25 

use  of  title  in  work  falling  into 438 

when  work  falls  into 497 

where  motion  picture  ba.scd  upon  work  in 24 

works  derived  from  common  stjurce 568 

work  may  receive  original  treatment  and  acquire  new  protection . 24-25 
work  jmblished  without  compliance  with  statute  falls  into 506 

Published  Works 

all  copies  of,  uiuiit  bear  copyriglil  notice 513 


922  INDEX 

Published  Works — Continued  page 

copyrighting  motion  pictures  as 502 

notice  of  copyright  on,  required 511 

Publisher 

may  sell  picture  rights  in  novel 12 

where  nothing  on  record  to  show  he  holds  copyright  as  trustee. . .     12 

Q 

Quotations 

not  infringement 542 


Race-Feeling 

aroused  by  picture 379 

Receipts 

.see  "Profits." 

Refund 

advance  royalties 90 

Registration 

bill  must  allege 597 

Regulation 

admission  of  children  to  theatre 370 

aisles,  standing  in 365 

as  to  closing  theatre 367 

as  to  removal  of  hats 367,  note 

censorship 383 

fireman  stationed  in 368 

immoral  pictures 372 

of  theatres 362 

operator  and  booth 367,  368 

ordinance  passed  after  building  erected 363 

prohibition  not  included  in  power  of 371 

Sunday  performance 391 

wlio  liable  for  penalty ' 379 


INDEX  923 

Register  of  Copyrights  paoe 

permits  willuirawal  of  one  copy  of  deposited  work.  G;J9 

Rehearsals 

failure  of  actor  to  attend l''»6 

Release 

ilate  of,  date  of  publication ^J^ 

Releasor 

sec  "  Distributor." 

Relief 

for  infringement  of  common-law  riRhts 498 

injunction  against  actor  whose  services  arc  unique 95 

injunction  pendente  lite  against  actor  whose  services  are  unique.  108 

Remedies  in  General 

iiijuiictioii  against  actor  whose  services  are  unique 9') 

injunction  pendente  lite  against  actor  whose  services  are  unique.  108 

of  actor  where  mutilation  occurs 171 

Remedies  in  Copyright  Actions 

accounting 60S,  GIO,  613,  023 

appeal ^'^ 

actions  at  law *  •  •  •  ^'^^ 

actions  in  equity — in  general 002 

actions  purporting  to  i)e  brought  under  the  Copyright  Act 628 

bill  of  particulars •'>^ 

civil  and  criminal  may  be  pursued  concurrently 635 

construction  of  forfeiture  anil  p(>nalty  clauses t>36 

coata 6()S.  OK),  617 

damages ^^''^^  •'•KJ 

final  hearing ^^^ 

injunction  as  to  part 619 

permanent  injunction                    008 

preliminary  injunction                   602 

procedure  after  finding  of  infringement OlS 

statute  of  limitations 630 


924  INDEX 

Remedies  in  Cop3^ight  Actions — Continued  page 

willful  infringements 634 

writ  of  seizure 621 

Renewal 

by  assignee  of  cop5Tight 548 

death  of  author 549 

notice  to  be  placed  on  work  after 549 

of  copyright 547 

when  application  for,  to  be  made 547 

Replevin 

for  violation  of  license 235 

of  films  for  failure  to  pay  royalties 224 

when  film  taken  out  of  state 236 

Rescission 

when  author  entitled  to 90 

when  producer  entitled  to 90 

Restraining  Order 

on  whom  binding  in  copyright  action 606 

temporary,  in  copyright  action 605 

Restraint  of  Trade 

exclusive  contract  with  actor  not  in 96 

in  general 487 

* 

Revocation 

of  theatre  license 349-351 

of  theatre  license  because  of  unsafe  building 351 

of  theatre  license  because  of  immoral  picture 354 

Ridicule 

exposure  of  actor  to 136 

Right  of  Privacy 

("ivil  Rights  Law  of  New  York 271 

in  general 267 

libelous  use  of  name  or  picture 282 

no  cotninon-law  right 269 


INDEX  925 

Right  of  F>rivacy — Coniinued  page 

personal  and  pro|KTtv  rights  discuiwed 267 

Weekly  News  motion  pictures 284 

when  liable  under  statute 274 

when  not  liable  under  statute  278 

Rights 

motion-picture  rights  sec,  "Dramatic  Ilighta." 

Royalties 

author  entitlcnl  to,  whether  work  produced  or  not 82 

forfeiture  for  non-payment H4 

guarantee  of 79,  80 

in  action  for,  licensor's  copyright  not  to  be  questioned 592 

licensee  may  not  withhold,  where  third  party  infringes 82 

payment  to  agent 531 

refund  of  advance 90 

"state-rights,"  failure  to  pay 224 

Btipulatetl,  for  period  or  performance 80 

to  actor  in  addition  to  salary 190 

when  producer  entitled  to  refund  of 90 

where  stipulated SO 

Rules 

of  Unite<l  States  Supreme  Court  for  procedure  to  secure  writ  of 

seizure  in  copyright  action 621 

of  United  States  Supreme  Court  for  practice  an<l  procedure  under 

section  25  of  the  Copyright  Act  of  1909— text 714 

Rules  and  Regulations 

of  United  States  Copyright  office — text 740 

of  Canadian  Copyright  Office — text S33 

Rulings 

of  treasury  department  on  importation  of  piratical  copies MO 

S 

Sale 

of  dramatic  rights  px^nietually  suspends  picture  rights 7 

of  scenario  vests  all  rights 22,  23 


926  INDEX 

Sale  — Continued  page 

of  scenario  to  several  producers 23 

of  "serial  rights"  construed 26 

one  offering  infringing  work  for,  liable 587 

Satisfaction 

author's  work  to,  of  producer 73 

incompetency  not  equivalent  to  dissatisfaction 159 

scenario  or  play  to  be  written  to  satisfaction  of  producer 117 

services  of  actor  to  be  to  satisfaction  of  employer 112 

Scenario 

copyrighted  as  a  book 540 

may  be  developed  into  short  story  or  novel 21 

not  copyrightable  as  a  dramatic  composition 19,  540 

outright  sale  divests  author  of  all  rights 22 

rights  of  author,  where  motion  picture  based  upon  original 19 

sale  of,  to  several  producers * 23 

sale  of,  "in  full  payment  for  story"  carried  no  reservations 22 

sale  of  "  to  let  you  have  my  drama"  assigned  all  rights 23 

submitted  in  prize  contest 88 

to  be  written  to  "satisfaction"  of  producer 115 

Scenario  Writer 

his  rights  with  respect  to  producer 205 

professional 205 

rights  in  completed  motion  picture 206 

rights  in  scenario 205 

Scenes 

uro  component  parts 545 

School 

distance  from  theatre 364 

license  refused  theatre  for  proximity  to 358 

Sculpture 

infringement  to  photograph 539 


INDEX  02 


Season  paok 

const  nifnl ^  ^9 

when  jury  may  determine  length  of 231 

Seats 

insiK'frt  ion  of .  .  .  306 

putnm  injurtni 305 

Second  Hand  Copies 

aclliiiK,  of  copyrighted  works 646 

Seditious 

see  "Immoral." 

sec  "Literary  Works." 

Sell 

right  to,  under  common  law 493 

Serial  Rights 

belong  to  owner  of  rights  in  drama  or  novel 24 

considered  as  one  jiubiication 26 

considered  in  its  secondary  meaning 26 

licensee  of,  may  maintain  action 580 

rights  of  author  in  serial  picture 25 

sale  of,  construed 26 

Serial  Stories 

rights  of  actor  who  poses  in 185 

Sermon 

rights  of  author  when  motion  i)icture  based  upon 15 

Services 

of  actor  "actually  porforme<r' llll 

tender  of,  by  actor  after  breach 1  17 

Set-Ofif 

see  "Contract." 

Short  Story 

rights  of  author  where  motion  picture  b;us«'<l  ujxm 15 


928  INDEX 

Singing  page 

when  a  theatre  license  required  for 339,  342 

Skating-Rink 

theatre  license  not  required 341,  note 

whether  skating  is  dancing 341,  note 

Sketch 

is  a  descriptive  title 410 

rights  of  author  where  motion  picture  based  upon 15 

South  Africa 

copyright  in  Union  of 655,  660 

Special 

injunction  against  actor  where  services  are  unique,  extraordinary 

and 95 

where  services  of  infant  are 173 

Specific  Performance 

agreement  to  assign  copyright 554 

of  contract  to  write 92 

of  contract  with  actor 96 

Stage-Business 

copyright  in 536 

Stage-Hand 

when  proprietor  liable  for  acta  of - 334 

Standard 

producer  entitled  to  maintain 221 

State  Court 

action  to  compel  assignment  of  copyright  may  be  brought  in.  . .  .   553 

State  Rights 

breach  of  condition  to  pay  royalties 224 

in  general 222 

purchaser  in  good  faith 224 

third  purtioH  infringing,  when  restrained 222 


INDEX  929 

statute  of  Limitations  paob 

in  copyright  ucliona *^^^ 

Statutes— Text 

lintish  C'opyriKht  Act  of  r.tll 7«i2 

C'anu«iiun  CopyriRht  Act  of  n)06 W2 

Unilwl  Status  C'opyriglit  Act  of  1909,  a«  amendoti  by  ihc  Acta  of 
1912,  1913,  1914 «77 

Steps 

patron  injured  on,  of  thcutrc •{'^» 

Story 

inf rin^fMl  by  play 5*)5 

Stranger 

acts  (if,  niiisl  liavf  been  forenoon  by  thenlro  proprietor  325-327 

liability  of  theatre  proprietor  for  acts  of .  .  312 

Subjects 

of  coiiyriglit •>•** 

Substantial 

part  of  work  must  be  taken 362 

Sunday 

(•hariluble  porfoniiaiu-o  given  on 401 

civil  and  criminal  liability  for  violation  of 399 

constmclion  of  stiiluti-s ■    394-399 

contract  with  actor  for  work  on I'-iTi 

early  statutt* •^'•^^ 

•"qiiity  will  not  enjoin  violation  of    399 

e()uil.y  will  not  enjoin  |)<»li<e  officials 400 

is  not  a  dies  non "'91 

"lalK)r"  to  matiiuic  «  theatre 39S 

N'Hislature  the  sole  jud^o "^^^ 

licens*' Krant«>d  on  condition  tliat  theatre  mmain  clos<«<i  on  360 

motion  picture  a  "theatrical  p<Tformance "  397 

motion-picture  a  "plac*-  of  public  amusomenl"  397 

motion  picture  a  "worldly  ciuployiucnt  or  buainoiH".              397,  note 


930  INDEX 

Sunday — Continued  page 

motion  picture  an  "interlude" 397,  note 

motion  picture  a  "play" 397,  note 

motion  picture  not  an  "outdoor  amusement" 393,  394 

motion  picture  not  an  "other  place  of  amusement" 396 

motion  picture  not  an  amusement  disturbing  the  peace 396 

New  York  Laws 393 

performance,  in  general 391 

who  liable  for  penalty  for  performance  on 400 

"Works  of  Necessity" 391 

Superfluous 

words  in  notice  of  copyright 516 

T 

Taxability 

of  copyrights 648 

Tenants  in  Common 

co-authors  are 37 

Tenants  in  Common  of  Literary  Property 

contracts  between  themselves 45 

contracts  between  themselves  and  publishers 45 

contracts  between  themselves  and  publishers  arc  for  personal 

services 46 

contract  between  them  not  assignable 51 

contract  between  them  entire 51 

effect  of  death  of  one 47 

elements  of  skill  and  confidence 48 

in  action  by  one,  all  to  bo  joined 44 

in  action  by  one  aguinst  liconscp,  others  nood  not  bo  joined 45 

may  sue  each  other  for  infringonioiit  of  tlio  common  work 45 

may  grant  rights  without  consent  of  co-tenant 37 

may  not  however  grant  exclusive  rights 38,  39 

may  not  destroy  rights  of  co-tenant 40 

may  not  be  coinpolled  to  account 41 

not  co-partners 42,  46 

not  joint-vent urers 46 

partnershij)  l)y  sjjccial  contract  dissolved  by  death  of  one 47 


INDEX  931 

Tender  page 

author  need  not,  manuscript  where  producor  defaultA  76 

Tent 

wlicn  cla-ssifiod  as  "building"  .'{63,364 

Term 

of  copyright o46 

Test 

of  cojiyright 535 

of  infrinRt'nicnt  of  copyright 542 

Text 

changes  made  in  work  of  author ,S;i 

Theatre 

u  private  ontorprise 293,  note,  294 

aisles,  standing  in 365 

angle  of  balcony  and  guard  rail' 304 

censorship 383 

critic  may  1k'  cxcludcMl 295 

crowds  gathering  in  front  of 252 

duty  of  i)atron ;{,'iO 

excluding  negro  from 29S 

falling  over  balcony ;J03 

federal  censorship  board ;JH8 

floor  giving  way 30f) 

immoral  exhibitions 372 

infants,  admission  to  370 

iiLS|K>etion  by  proprietor  as  a  defense  to  action  for  negligence.  .306-311 

ins|M'ctioii  of,  for  fire  hazards MiS 

lessor,  liable  for  infringing  |)orformance i\S7 

lessor  iial)le  for  structiiro .HY2 

liability  of  proprietor  for  manager's  refusid  to  |)ermit  officer  to 

enter  to  serve  process  on  actor 197,  note 

liability  to  trespasser 323,  note 

license  rcvoktxl  l)ocause  of  un.'mfc 351 

manager  not  liable  for  infringing  |)orfonnance. .  590,  note 

may  In-  a  tent ;J6.3,  364 

measure  of  proprietor's  duty 299 


932  INDEX 

Theatre — Conlinued  page 

notice  of  defects  must  be  shown 303 

not  a  bawdy  house 344 

not  a  dwelling  house 345 

not  a  nuisance 344 

not  a  nuisance  per  se 400,  note 

panic  of  crowd 312,  317 

patron  assaulted 326 

patron  injured  by  articles  dropping 311 

patron  injured  by  wild  animals 313 

patron  injured  by  crowds 318 

patron  injured  by  performer . ' 319 

patron  injured  by  other  accident 322 

patron  injured  by  act  of  stranger 325 

patron  injured  in  darkened 306 

patron  injured  in  aisles 306 

patron  injured  on  steps 306 

patron  injured  at  exits 306 

patron  injured  on  seat  and  floor •.  .  .  .  305 

patron  injured  falling  over  balcony 303 

patrons  boisterous 252 

patrons  trespassing 255 

performers  noisy 252,  254 

power  of  municipality  to  erect 364 

proximity  to  church 255 

prohibition  of  giving  of  performances  not  regulation 371 

property  lost  in 335 

proprietor  may  refuse  to  sell  ticket 293 

proprietor  may  sell  ticket  on  condition 293 

proprietor  of,  liable  for  infringing  pcrfornyincc 5S7 

proprietor  not  insurer  of  safety  of  patrons 299 

property  lost  in 335 

queue 252 

regulation  of 362 

regulation  of  Ixiilding 362 

rcgulat  ion  as  to  closing  of 3G7 

rcgulaiiona  as  to  operator  and  booth 367-368 

regulation  as  to  removal  of  hats 367,  note 

right  to  exclude  patrons  from 291 

seats — injuries  in — inspection  of 306 


INDEX 


d33 


Theatre— ron/ini«'(f  'a<w 

sec  "  10xhil)it<)r.  " 

Sunday  iMTformunee 391 

ticket  of  udiiiissicin  a  revocable  license 292 

t  ickct  taker  not  liable  for  penalties      379 

trip{)ing  in 306 

what  is 337 

when  a  nuisance .  .                           251 

who  liable  for  injuries  to  patron  -'^'^l 

who  liable  for  jwnalties  •^"•> 

Theatre  Leases 

luljoiiiing  jiroperty  owners 244 

assignments 242 

building;  contracts 242 

counterclaim  for  delay  in  construction 242 

covenant  by  lessee  not  to  engage  in  business 24(i 

declarations  of  patrons  part  of  "res  gestae" 247 

deposit  as  security -50 

effect  of  subse(]uent  ordinances 241 

fixed  rental  as  well  jus  profits 245 

in  action  for  failure  to  pay  profits,  what  testimony  inadmissible.  .   247 

in  general • -'^ ' 

Icssik;  may  sue  before  date  of  entry , 251 

liability  of  agent  contracting '  237 

liability  of  owner  for  repairs 245,  note 

right  of  municipality  to  enter  into 248 

right  of  way  for  exit 245 

structural  defects 243-244,  note 

temint  niay  not  enjoin  other  tenant  for  same  period 24G 

theatre  shut  down  l)y  authoritii>s 240 

theatre  shut  down  by  fire 241 

when  action  to  recover  deposit  maintainable 251 

when  deposit  regarded  as  penalty 250 

when  joint  venture 245-24ti 

when  rent  susjK'nded 240-241 

Theatre  Ticket 

a  revocable  license 292 

not  revocable,  under  Knglish  rule 297 


934  INDEX 

Theatre  Ticket— Continued  page 

proprietor  may  refuse  to  sell 293 

proprietor  may  sell  on  condition 293 

refund  of  money  for *. 393,  note 

re-sold  by  speculator 293 

"scalping" 381 

statutes  against  "scalping" 381 

to  print  wrongfully  is  a  forgery 383 

Theatrical  Performance 

what  is 337 

Theme 

arrangement  of,  confers  copyright 534 

Thought 

no  copyright  in 560 

Ticket-Taker 

not  liable  for  admission  of  infants 381 

Time 

damages  for  failure  to  deliver  work  on 75 

producer  entitled  to  refund  where  work  not  produced  on 7(> 

producer  may  waive  performance  on 76 

producer  must  give  notice  to  complete 76 

producer  must  produce  within  reasonable  time 78 

use  of  film  at,  not  agreed  upon 225 

Title 

acquiescence  and  abandonment 449 

after  copyright  in  work  expires 438 

cannot  part  with  work  and  retain 464 

can  [)art  with  ix)rli()n  of  work  and  retain  title 464 

change  in,  invalidates  copyright 522 

copyright  does  not  extend  to 403 

de[KJ8it  of,  as  unpublished  work 500 

descriptive,  may  not  be  protected 407 

first  user  obtains  exclusive  right 410 

held  not  to  infringe 445 


INDEX  *^35 

Tiile—Contimted  »"*«»: 

held  to  infrinfjp "•* 

how  prot<K"te(l ^^^ 

no  copyright  in •*'-' 

of  cartoons  protocto<l  like  trade-marks -169 

of  novel  and  play  in  conflict 434 

of  work  piusfst^  on  death  of  author 464 

play  and  motion  picture 413 

I)n)prietor  of  cx)pyrinlit  must  show  how  he  acquired.  .  .  •'»% 

pn)tection  in,  and  in  work  distiiiKuishetl 400 

right  to,  and  to  trade-mark  distinguished 4(j<i 

right  to  exclusive  use  of,  with  work  only 403 

right  to,  passes  to  trustee  in  bankruptcy 464 

similar  or  same,  useti "^Ol, 

those  held  to  infringe "^^W 

transferability  of ^G^i 

user  of,  necessjiry  to  accord  protection 410 

using  same  or  similar  titles 402 

what  constitutes  prior  user 411 

where,  of  magazine  held  a  trade-mark 467 

work  in  pubUc  domain  j)rotected  in 407 

Titles  of  Works 

"  A  Bird  of  Paradise" 581 

"A  Fool  there  Was" 410,  416,  444 

" Realty's  Head  Line  Copy-Book " 440 

"Bcatty's  New  and  Improved  Head-Line  Copy  Books" 440 

"Ben  Hur" 3,  413 

"Birth  Contrt)!" 356,  373 

" Bon  Ton" 443 

"  Booth's  Theatre" 480 

"Brewster's  Millions" 223 

" Buster  Brown" 405.  443,  475 

"Canadian  Btnikseller  and  Literary  Journal" 440 

"Canada  B(M)kseller  and  St^itioner" 440 

"Captain  Jinks  of  the  Horse  Marines" 2,  413 

"Chantecler" 443 

"Chanticlair" 443 

"Charity" 408.  447 

"Charley's  Aunt" 447 


936  INDEX 

Titles  of  'Works— Continued  paqe 

"Charley's  Uncle" 447 

"Chatterbox" ' 442 

"Comfort" 442 

"Cottage  Homes  of  England" 449 

"Count  of  Monte  Cristo" 25 

"Current  Quotations" 445 

"Divorce" 80 

"Dr.  Eliot's  Five-Foot  Shelf  of  the  World's  Best  Books" 442 

"Dr.  Eliot's  Five-Foot  Shelf  of  the  World's  Greatest  Books" ...    442 

"Dr.  Eliot's  Five- Foot  Shelf  of  Books" 442 

"Erminie" 406,  443 

"Everybody's  Magazine" 409,  448 

"Everybody's  Weekly" 409,  448 

" Fadette  Ladies  Orchestra" 478 

" Farthest  North  Nansen" 446 

"Follies  of  1917" : 444 

"Gazette  du  Bon  Ton" : 443 

"Gentleman  Joe" 60 

'  "Gus  Hill's  Follies  of  1917" 445 

"Happiness" 427,  444 

"Heney's  New  and  Revised  Edition  of  Jousse's  Royal  Standard 

Pianoforte  Tutor" 440 

"Heney's  Royal  Modern  Tutor  for  the  Pianoforte" 440 

"Home  Comfort" 410,  442 

"Independent  National  System  of  Penmanship" 441 

" In  the  Hands  of  Impostera" 220 

"Is  Any  Girl  Safe?" 373 

"James  Boys  and  Night  Riders" 356 

"J.  Cirubcr's  Hagcrstown  Town  and  County  Almanack" 441 

"Lady  in  Red" 51 

"L'Aiglon" 443 

"  La  Tosca" 6 

"Life" 410 

"Mail" 448 

"M.  A.  P.  (Mainly  About  People)" 448 

"  MercodcH" 443,  477 

"Morning  Mail" 448 

"Motor  Boat" ' 446 

"  Motor  Boating  Magazine" 446 


INDEX  937 

Titles  of  Works     Cnntinunl  taoe 

"Mutt  .\:  .IclT" J70 

"  Nu|K)I(><)n,  the  Npwlywetl's  Buby  " -WJ 

"  Nfw  Km" 440 

"  N(r\v|M)rl  Social  Itxifx" 44«i 

"  New  ^'ork  ( "nmrncrciiil "      44«) 

"Nj'w  York  Urtcclive  Library"'                   447 

"  Nick  Cartor" 447 

"Old  Dutrli" ■.  39 

"Ol.l  Slciill.  Library'" 405,  447 

"Oniiigc  Hlossoiii.s"                   357,  373 

"Otir  Folks  llliistrateil  Pa|>er" 44<» 

"Our  Sailor  KiiiK" 441) 

"Our  ^'ouiin  Folks"  44»j 

"Oxford  iiibic" 442 

"Payson,   Druiitcju  &  Scribner's  National  System  of  Peninun- 

ship" 441 

"  Peg  ()•  My  Heart" 574 

"  Pliiladflphia  Suburban  Life" 441 

"Pique" 80 

"P.  T.  O.  (People  Talked  Of)"    448 

"  Punch  &  Judy  " 448 

"  Kepublicun  New  Era" 446 

"  Sapho  " 567 

"Sealed  Orders". , 445 

"Sherlock  Holmes" 441 

"Slu'rlock  Holine«,  Detective" , 441 

"Shoughraun" 5<>.S 

"Social  Uenisti-r" ' 40K.  44r» 

"St.  KImo" 447,  ')71 

"Suburl)an  Lift-"                       441 

"The  Awn keiiing  of  Spring"                                                            356,  376 

"The  Hat  lies  of  a  Nation"    425 

"The  Hirthday  Scripture  Text  Book" 445 

"The  Birth  of  a  Nation  '                   357,  37i> 

"The  Black  Crook"                            247 

"The  Canadian  Bird  Book" 412,  44i< 

"The  Childr.'us  Birthday  Text  Book" 445 

"The  Com<«-Back"                418,  421,  444 

"The  Conjinereial  Advert i.s<»r" 446 


938  INDEX 

Titles  of  Works— Continited  page 

"The  DaUy  Express" 448 

"The  Decorator" 448 

"The  Decorators'  and  Painters'  Magazine" 448 

"The  Evening  Post" 448 

"The  FaU  of  the  Romanoffs" 431 

"The  Fatal  Card" 509 

"The  Field" 448 

"The  Field  and  Kennel" 448 

"The  Fram  Expedition.    Nansen  in  the  Frozen  World" 446 

"The  Frank  Case" 357,  379 

"The  Girl  from  Rectors" 357 

"The  Girl  Who  did  not  Care" 426,  447 

"The  Girl  Who  Doesn't  Know" 426,  447 

"The  Good  Things  of  Life" 445 

"The  Hand  That  Rocks  the  Cradle" 356,  373 

"The  House  of  a  Thousand  Candles" 428,  432,  444 

"The  House  of  a  Thousand  Scandals" 430,  432,  444 

"The  House  of  Bondage" 5 

"The  Inside  of  the  White  Slave  Traffic" 356,  372 

"The  Investor" 442 

"The  Maid  of  Plymouth" 80 

"  The  Merry  Widow  " 536 

"The  Miracle" 413,  443 

"The  Monthly  Odd  Volume" 445 

"The  Morning  Post" 448 

"The  National  Advocate" 446 

"The  National  Police  Gazette" 443 

"The  Ne'er  Do  Well" 8 

"The  New  Canadian  Bird  Book" 412,  448 

"The  New  York  National  Advocate" 446 

"The  North  Express" 448 

"The  New  Northwest" 446 

"The  Northwest  News" T 446 

"The  Octoroon" 29,  56S 

"The  Odd  Volume" 445 

"The  Ordeal " 375 

"The  Plutiiher  and  Decorator" 44K 

"The  Rosary 410,  422,  444 

"The  Sex  Lure" 356,  377 


INDEX  93<» 

Titles  of  ^orks— Continue,!  paoe 

"Tlic  Shadow".  .  ^^l 

"The  Spice  of  Life" ^^•» 

"Tho  Tyranny  of  the  RomanofTs"  til.  432 

"The  Unitetl  States  Investor" ^^'- 

"The  Wronn  Mr.  Wright " 410,  445 

"The  WroiiK  Mrs.  Wrinht" 410.  445 

"T.  L).  RdlMTtson's  Hagerstown  Almanack" 441 

"Under  the  (Ja-siiKht" v  S67 

"  Unitetl  States  Police  Gazette" *^ 

"Webster's  Dietii)nary"  "* 

"Where  There's  a  Will  " *49 

"Where  There's  a  Will,  There's  a  Way  "  44U 

"Willard-Johnson"  fight  •^"•' 

Tort  Feasor 

When  manufacturer  not  a  joint 589 


Trade 

restraint  of '^^'^ 

Trade-Mark 

adviuitjinea  of  registered """^ 

a-ssignahility '^ 

embraced  in  unfair  competition 459 

no  protection  as,  for  letters  of  alphabet 463 

registeretl,  no  notice 4t>- 

right  to,  and  to  title  distinguished 40*i 

when  title  of  magazine,  held  a 467 

Trade  Name 

lussignability "'"^ 

eopyriglit  may  l)e  tiiken  out  in •^*- 

copyright  taken  out  in  wrongful ^^ 

cmbracetl  in  unfair  competition 459 

right  to,  ami  to  title  di.stinguished  ^     4ti(i 

title  of  work  protected  on  theory  of  '<>^.  ""^<^ 

Tragedy 

word,  is  a  descriptive  title. .  t*^*^-  ""^^ 


940  INDEX 

Transcription  page 

right  of,  under  copyright 500 

Translate 

right  to,  under  common  law 495 

Travel 

actor  entitled  to  recover  for  time  spent  in 134 

questions  of,  of  actor 177 

Treason 

to  pay  royalties  to  belligerent  alien 531 

Trespasser 

liability  of  theatre  proprietor  to 323,  note 

U 

Undertaking 

must  be  given  in  copyright  action  to  entitle  to  preliminary  injunc- 
tion    605 

must,be  given  in  copyright  action  to  entitle  to  temporary  restrain- 
ing order 605 

* 
Unfair  Competition 

accounting,  right  to • 452,  453 

acquiescence  and  abandonment 449 

actions  at  law 468 

action  against  one,  bar  as  to  others 468 

acts  of  third  parties 450 

between  novel  and  play 434 

between  stage  and  picture  rights 10 

cartoons  protecte<l 469 

damages 455 

deception  noe<l  not  be  proven 458 

distinction  between  patent  and  copyright 481 

first  user  bars  others 10 

fraud 455 

generally 402 

impfjrtance  of  advertising  matter 463 

intent 456 


INDEX  941 

Unfair  Competition— Conlinued  ThOK 

in  titles  of  plays 443 

in  titlcH  of  plays  and  motion  pictures 443 

joinder  of  action  in,  with  action  in  copyright  .'>84 

laches 449 

marks  and  devices 460 

may  unite  cause  of  action  for,  with  copyright 460 

neiil  not  wait  until  actual  infringement 459 

notice  to  infringer 457 

parties  to  the  action 467 

*     protection  primarily  of  trader 458 

protects  titles  as  trade  names 407,  note 

price-fixing 481 

relief,  generally 453 

restraint  of  trade , 487 

right  to  assign  one's  name 477 

seller  liable 443,  note 

titles,  stH;  "Titles." 

titles  held  to  infringe 440 

titles  held  not  to  infringe 445 

trade  names  and  trade-marks  embraced  in 459 

transferability  of  title 463 

use  of  title  after  copyright  in  vvork  expires 438 

work  in  public  domain  protected  in  title 407 

Unfaithfulness 

of  actor 162 

Unique 

injunction  against  actor  where  services  are 95 

stipulaticm  that  services  are,  not  binding  on  actor 108 

when"  services  of  infant  are 173 

United  Kingdom  and  Protectorates 

copyright  in 654 

Unpublished  Work 

action  on,  where  brought 686 

coincidence 576 

duration  of  protection  in 640 

exclusive  license  in,  protected 583 


942  INDEX 

Unpublished  Work — Continued  page 

how  copyrighted 500 

may  reserve  dramatization  rights  in 556 

performance  of,  a  crime 635,  note 

right  secured  to 495 

rule  as  to  joinder  of  proprietor  and  licensee 584 

securing  copyright  in 501 

Use 

exclusive,  in  work  before  publication 495 

of  film  at  place  not  agreed  upon 225 

of  title  necessary  where  protection  sought 410 

period  of,  intervening 412 

prior  user  of  title 410 

right  to  "use"  in  patent  may  be  limited , . . . .  482 

sole  right  to,  given  in  patent  only 481 

V 
Validity 

of  copyright  not  affected  by  classification 503 

Value 

of  literary  work,  how  estimated 78-79 

Vend 

right  to,  under  copyright 500 

right  to,  a  patented  article 482 

Version 

other,  under  copyright 500 

Voice,  Tones  of 

copyright  in 536 

W 
War 

license  refused  to  aliens 358 

I)if.turc  of,  when  permitted 375 

pictures  suppressed 357 

see  "  Belligerent  Aliens." 


INDEX  943 

Warranty  pa'^k 

»»f  actor  of  requisite  skill  and  ability 159 

Wear  and  Tear 

iiiiplii"!  warranty  of  outline  and  fitness 227 

of  film 225-226 

Weekly  News  Pictures 

not  classifii'd  ius  mnvspapers 286 

8e«  "Right  of  Privacy." 

Wild  Animals 

negligence  to  be  shown 3l5 

old  rule  of  absolute  liability 313 

Words 

copyright  not  a  right  to  use  of  certain ., 560 

Workmen's  Compensation  Acts 

with  respect  to  actors 180 

Writings 

cdpyright  in  author's 560 

Writ  of  Seizure 

in  copyright  action,  in  general *»21 

proceedings  for,  may  be  united  in  one  action  with  those  for  in- 
junction, etc ^^^ 

Y 

Year 

in  notic*'  of  cropyrighl  after  renewal 549 

of  publication,  in  notice •''1^ 

of  publication  not  recjuired  on  motion  picture 512 

variation  of,  in  notice  of  copyright 514 


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